United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-3020
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  Aaron J. Webster

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                    for the Northern District of Iowa, Waterloo
                                  ____________

                          Submitted: February 19, 2016
                             Filed: April 25, 2016
                                ____________

Before BENTON, BRIGHT, and BYE, Circuit Judges.
                           ____________

PER CURIAM.

       In this appeal, following remand for resentencing without consideration of
certain disputed facts, see United States v. Webster, 788 F.3d 891 (8th Cir. 2015),
Aaron Webster challenges the amended judgment sentencing him to the statutory
maximum of 120 months in prison for possessing an unregistered sawed-off shotgun.
The district court1 imposed the sentence at the resentencing hearing, after entertaining
argument from both sides, and electing to depart or vary upward from the Guidelines
range of 70 to 87 months. Counsel moves to withdraw under Anders v. California,
386 U.S. 738 (1967), and argues that the sentence is substantively unreasonable. In
a pro se supplemental brief, Webster additionally argues that the district court erred
in applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B). Having
jurisdiction under 28 U.S.C. § 1291, this court grants counsel’s motion to withdraw
and affirms the amended judgment.

       Webster’s challenge to the section 2K2.1(b)(6)(B) enhancement is reviewed
only for plain error because he did not object below, see United States v. Pirani, 406
F.3d 543, 549 (8th Cir. 2005) (en banc). There was no error, plain or otherwise,
because unchallenged facts in the presentence report supported the enhancement, see
U.S.S.G. § 2K2.1(b)(6)(B) (increase by four levels if defendant used or possessed
firearm or ammunition in connection with another felony offense) & (comment. (n.
14(C))) (defining “another felony offense”).

       Webster’s challenge to the substantive reasonableness of his sentence is
reviewed under a deferential abuse-of-discretion standard. See United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). As Webster notes, the district
court imposed the same sentence on remand as Webster received in the first
sentencing, and this court identified in the first appeal several mitigating sentencing
factors that indicated a reasonable probability Webster would have received a shorter
sentence but for the sentencing error. See Webster, 788 F.3d at 893. However, the
fact that this court “‘might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.’” Feemster, 572 F.3d
at 462 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). While “substantive


      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

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review exists, in substantial part, to correct sentences that are based on unreasonable
weighing decisions,” United States v. Kane, 639 F.3d 1121, 1136 (8th Cir. 2011)
(quotation omitted), this court “must give due deference to the district court’s decision
that the § 3553(a) factors, on a whole, justify the extent of the variance.” Feemster,
572 F.3d at 461-62 (quoting Gall, 552 U.S. at 51). In reimposing the 120-month
sentence, the district court commented in part that the Guidelines did not adequately
take into account the seriousness of the offense: Webster had discharged the subject
firearm into a fleeing vehicle, narrowly missing the driver. See U.S.S.G. § 5K2.6
(stating that court may depart if weapon was used in commission of offense; extent
of increase depends on dangerousness of weapon, manner it was used, and extent its
use endangered others; discharge of firearm may warrant “substantial sentence
increase”). In short, after careful review, this court cannot say that this is the “unusual
case” where the district court’s sentence will be reversed as substantively
unreasonable. See Feemster, 572 F.3d at 464.

      Finally, review of the record pursuant to Penson v. Ohio, 488 U.S. 75 (1988),
reveals no nonfrivolous issues for appeal. The sentence is affirmed, and counsel is
granted leave to withdraw.

BRIGHT, Circuit Judge, dissenting.

      On remand, the district court imposed the same sentence that was originally
imposed without adequately explaining how a sentence of 120 months was still
appropriate in the absence of the improper facts the district court emphasized in
choosing the original sentence. Because we require district courts to give us better
insight into their sentencing decisions to allow for meaningful appellate review and
the imposition of a 120-month sentence may be substantively unreasonable, I would
vacate Webster’s sentence and remand for resentencing. I therefore respectfully
dissent.



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       In United States v. Webster, 788 F.3d 891 (8th Cir. 2015) [hereinafter Webster
I], we remanded this case for resentencing. We concluded in a clear, well-written
opinion that the district court committed plain error by basing Webster’s original
sentence on objected-to facts and repeatedly referring to this unproven conduct as
“aggravated.” Id. at 893. In the absence of this evidence, we concluded there was “a
reasonable probability that[,] but for the unproved allegations, Webster would have
received a shorter sentence.” Id. To highlight why a shorter sentence may be
appropriate, we noted Webster’s young age, education level, and limited criminal
record. Id.

       On remand, the district court admitted confusion surrounding our remand for
resentencing. (Resent’g Tr. 4). In summarizing our decision, the district court
suggested the reason for our remand was she “might not have made [herself] clear as
to the bases [for the original sentence].” (Id.) On the contrary, we did not conclude
the reasons given by the district court for selecting its sentence lacked clarity. Instead,
we explicitly held the district court committed plain error by selecting a sentence
“based [on] . . . objected-to facts.” Webster I, 788 F.3d at 892.

       On remand, the district court did not acknowledge our express holding. In fact,
not once in the resentencing transcript did the district court discuss the absence of the
objected-to facts in an attempt to explain its new sentence. Instead, despite the
omission of the “aggravated conduct” from the record—the main reason provided for
an upward variance at the original sentencing hearing—the district court imposed the
exact same sentence. (Resent’g Tr. 12-17). Thus the district court imposed the same
sentence without acknowledging our holding or providing reasons why the same
sentence was appropriate.

       We have repeatedly held that a remand for resentencing is warranted when a
district court fails to “adequately explain the chosen sentence to allow for meaningful
appellate review.” United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009)

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[hereinafter Feemster II] (en banc) (quoting Gall v. United States, 552 U.S. 38, 50,
128 S. Ct. 586, 169 L. Ed. 2d 445 (2007)). To adequately explain a sentence, the
district court must “explain its reasons for the sentence . . . with some degree of
specificity.” United States v. Feemster, 435 F.3d 881, 884 (8th Cir. 2006) [hereinafter
Feemster I]. And while a district court has the discretion to impose the same sentence
on remand, the district court’s discretion is still limited by the requirement to provide
“substantial ‘insight into the reasons for [the district court’s] determination.’ ”
Feemster II, 572 F.3d at 463 (quoting United States v. Kane, 552 F.3d 748, 756 (8th
Cir. 2009)).

       For example, in United States v. Braggs, 511 F.3d 808 (8th Cir. 2008), we
reversed the district court for incorrectly applying a two-level enhancement for abuse
of a position of trust. After resentencing, Braggs appealed arguing imposition of the
same sentence was unreasonable. Id. at 811. When holding the district court’s
imposition of the same sentence was not an abuse of discretion, we highlighted the
district court’s explicit consideration of our opinion and analysis of why the same
sentence was appropriate. Id. at 811-12; see also United States v. Hoover, 246 F.3d
1054, 1062 (7th Cir. 2001) (acknowledging a district court’s ability to impose the
same sentence following a remand based upon a sentencing error, but requiring the
district court to “explain why the change in criminal history did not affect the
sentence”).

       Similarly, in Feemster I, we reversed and remanded for resentencing, holding
the record was insufficient for our Court to meaningfully analyze the reasonableness
of Feemster’s sentence. 435 F.3d at 854. At resentencing, the district court “further
developed its reasoning”—as required by Feemster I—and imposed the same
sentence. Feemster II, 572 F.3d at 459-60. Concluding the district court provided
“substantial ‘insight’ ” into its imposition of the same sentence, we affirmed. Id. at
463-64 (emphasis added) (quoting Kane, 552 F.3d at 756).



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        In contrast to either Braggs or Feemster II, this record lacks the evidence
needed for our Court to assess whether imposition of the same sentence was
appropriate. First, we are unable to determine whether the district court followed our
mandate in Webster I. See United States v. Castellanos, 608 F.3d 1010, 1016-17 (8th
Cir. 2010) (concluding both the mandate rule and law of the case doctrine “ ‘express
the principle that inferior tribunals are bound to honor the mandate of superior courts
within a single judicial system’ ” (quoting United States v. Bartsh, 69 F.3d 869, 866
(8th Cir. 1995))). The district court not only failed to adequately summarize our
holding, but also failed to acknowledge the absence of the objected-to facts. See
United States v. Chettiar, 501 F.3d 854, 861-62 (8th Cir. 2007) (holding under the
record in the case that it was “impossible given the present record to conduct a
meaningful review of whether the district court gave significant weight to any
improper or irrelevant factor”). Second, the record is devoid of any analysis for why
the same sentence is appropriate in the absence of the objected-to facts. See, e.g.,
Braggs, 511 F.3d at 811-12 (highlighting the district court’s analysis of why the same
sentence was appropriate). Without a better explanation from the district court, we
are unable to determine whether the same sentence was appropriate.

       In addition, an adequate explanation is required “to promote the perception of
fair sentencing.” Gall, 552 U.S. at 50, 128 S. Ct. 586, 169 L. Ed. 2d 445. As the
Supreme Court explained in Gall, the degree of specificity required of an explanation
depends upon the context. See id. (generally indicating the degree of justification
needed for imposing a particular sentence increases with the degree the sentence
deviates from the norm). When a district court finds the same sentence is appropriate
after emphasizing improper facts in choosing the original sentence, a better
explanation must be required lest we run the risk of the public viewing the federal
sentencing system as unfair and arbitrary. When a district court imposes the same
sentence after the removal of an improper sentencing factor without explanation, the
public is left with the impression that our system is unfair. That action does not speak
to the judicial fairness required of all judges under Canons 1 and 2 of the Code of

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Conduct for United States Judges. See Moran v. Clarke, 309 F.3d 516, 518 (8th Cir.
2002) (en banc) (per curiam) (referring to the “solemn obligation” of every federal
judge “to not only uphold the integrity of the judiciary, but also to act always in a
manner that promotes public confidence in the integrity and impartiality of the
judiciary”).

      Even if the district court had not erred by failing to adequately explain its
sentence, however, I also seriously question the appropriateness of the imposition of
the maximum 120-month (10-year) term of imprisonment. I would remand for
reconsideration by the district court for the reasons stated below.

       I recognize “[o]ur review of the substantive reasonableness of a variance [or
departure] is . . . narrow and deferential.” United States v. Dautovic, 763 F.3d 927,
934 (8th Cir. 2014). But our abuse of discretion review is not “a hollow exercise.”
United States v. Kane, 639 F.3d 1121, 1135 (8th Cir. 2011). The Supreme Court
unequivocally stated that “[t]he federal courts of appeals review federal sentences and
set aside those they find ‘unreasonable.’ ” Id. (quoting Rita v. United States, 551 U.S.
338, 341, 127 S. Ct. 2456, 168 L. Ed. 2d 203 (2007)). Thus, it is the “duty [of our
Court] to correct sentencing mistakes”–including sentences our Court finds
unreasonable. Id.

       Yet, our reversal on the basis of substantive unreasonableness is often left to a
district court’s decision to vary below the Guideline range. See, e.g., Dautovic, 763
F.3d at 932-34 (reversal after district court imposed 20-month sentence with 135- to
168-month Guideline range); Kane, 639 F.3d at 136 (reversal after district court
imposed 120-month sentence with 210- to 262-month Guideline range); Feemster I,
435 F.3d at 883-84 (reversal after district court imposed 120-month sentence with
360-month to life Guideline range). Rarely, if ever, do we hold sentences above the
Guideline range substantively unreasonable. See, e.g., United States v. Whitlow, 815
F.3d 430 (8th Cir. 2016) (affirming 108-month sentence with 51- to 63-month

                                          -7-
Guideline range); United States v. Moralez, 808 F.3d 362 (8th Cir. 2015) (affirming
210-month sentence with 135- to 168-month Guideline range); United States v.
Stoner, 795 F.3d 883 (8th Cir. 2015) (affirming 108-month sentence with 37- to 46-
month Guideline range); United States v. Rogers, 423 F.3d 823 (8th Cir. 2005)
(affirming 360-month sentence with 57- to 71-month Guideline range). The pattern
of failing to reverse above-Guideline sentences on the basis of substantive
unreasonableness perpetuates our broken sentencing system. See, e.g., United States
v. Fry, 792 F.3d 884, 894 n.2 (8th Cir. 2015) (Bright, J., dissenting) (listing cases
regarding my consistent opinion that the federal sentencing system is “ ‘broken and
a new approach must be taken’ ” (quoting United States v. Noriega, 760 F.3d 908, 912
(8th Cir. 2014) (Bright, J., concurring)).

      As discussed by Former Attorney General Eric Holder, the problem with the
federal sentencing system is the “outsized, unnecessarily large prison population.”
See Eric Holder, Attorney Gen. of the U.S., U.S. Dep’t of Justice, Remarks at the
Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12,
2013), available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-
130812 .html. As the Attorney General stated, “too many Americans go to too many
prisons for far too long, and for no truly good law enforcement reason.” Id. Our
sentencing policy has also resulted in “harsher punishments” for “people of color”
throughout the United States. Id. The White House recently highlighted the “decades
of overly punitive sentencing policies” through the commutation of numerous prison
terms. See Neil Eggleston, White House Counsel to the President, President Obama
Has Now Commuted the Sentences of 248 Individuals, The White House (Mar. 30,
2016, 11:01 a.m.), https://www.whitehouse.gov/blog/2016/03/30/president-obama
-has-now-commuted-sentences-248-individuals.

      As highlighted by my prior opinions and the guidance from the Executive
branch, the problem our country faces is not too many lenient sentences. On the
contrary, the problem we face is excessive prison terms and high costs to taxpayers

                                         -8-
associated with excessive prison terms. Webster’s sentence may fall within the
category “decades of overly punitive sentencing policies”, see id., and, for that reason,
Webster’s sentence should be vacated and remanded for reconsideration by the district
court.

       Webster is an African-American man with a high school education. At the time
of the offense, Webster had no employment record and came from a broken home.
In spite of his adverse life circumstances, Webster has a limited criminal record with
the lowest category criminal history score. At the resentencing hearing, Webster also
informed the district court of his completion of a 14-hour drug treatment program, and
attendance at both anger management and victim impact classes. (Resent’g Tr. 11-
12). Thus, in the year between Webster’s original sentence and the resentencing
hearing, Webster showed the ability for successful rehabilitation. (Id. at 6-7, 11-12
(discussing Webster’s behavior while in the custody of the Bureau of Prisons)).

       Further, Webster was 20-years-old at the time of the offense. Since 2005, the
Supreme Court, has consistently held young people are most likely to change during
a period of incarceration. See, e.g., Miller v. Alabama, – U.S. –, 132 S. Ct. 2455,
2464, 183 L. Ed. 2d 407 (2012) (concluding “a child’s character is not as ‘well
formed’ as an adult’s; his traits are ‘less fixed’ and his actions are less likely to be
‘evidence of irretrievabl[e] deprav[ity]’ ” (alteration in original) (quoting Roper v.
Simmons, 543 U.S. 551, 570, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005)). In fact,
psychological research indicates the human brain does not reach its ultimate stage of
development until adolescents reach their mid-twenties. See, e.g., C. Antoinette
Clarke, The Baby and the Bathwater, 53 U. Kan. L. Rev. 659, 710 (2005) (citing John
McCrone, Rebels with a Cause, New Sci., Jan 22, 2000, at 22); Melinda Beck,
Delayed Development: 20-Somethings Blame the Brain, Wall St. J., Aug. 23, 2012.
Thus, young people like Webster are the most likely to reform while in prison. Cf.
Miller, 132 S. Ct. at 2464, 183 L. Ed. 2d 407 (noting that Roper and Graham
established that juveniles have “greater prospects for reform” and, therefore, “ ‘are

                                          -9-
less deserving of the most severe punishments’ ” (quoting Graham v. Florida, 560
U.S. 48, 68, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010))).

       Taking into account the offense conduct and Webster’s limited criminal history,
the Guidelines advised the district court that a 70- to 87-month sentence was
appropriate. In spite of these circumstances, the district court varied Webster’s
sentence to the statutory maximum of 120-months’ imprisonment. But for me, like
in Dautovic and Kane, the “district court’s justification for the variance fails to
support the degree of the variance in this case.” Dautovic, 763 F.3d at 935; see also
Kane, 639 F.3d at 1136 (concluding “the district court’s . . . sentence [was] the
product of unreasonable weighing decisions”). Here, the district court varied
Webster’s sentence 42% above the bottom-end of the advisory Guideline range and
demanded Webster sit in jail 2.75 years more than the top sentence recommended by
the Guidelines. The district court’s only justifications for the variance were the
presence of two guns and the “extremely aggravating circumstances of this offense.”
(Resent’g Tr. 15-16). Based on the current move in this country to shorten federal
sentences, coupled with Webster’s age, criminal history, education level, remorse, and
efforts to rehabilitate himself, the district court’s punishment may well be excessive
“under the totality of the circumstances in this case, judged in light of all of the §
3553(a) factors.” Kane, 639 F.3d at 1136. Therefore, I would vacate Webster’s
sentence and remand for reconsideration consistent with this opinion.

       Accordingly, I dissent and would vacate Webster’s sentence, remanding this
case to the district court for resentencing.

                       ______________________________




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