Submitted: November 17, 2017
from United States District Court for the Western District of
Missouri - Kansas City
COLLOTON and GRUENDER, Circuit Judges, and READE,  District
Murphy pleaded guilty to one count of bank robbery, in
violation of 18 U.S.C. § 2113(a). At sentencing, the
district court varied upward from the Guidelines range
and sentenced Murphy to 160 months' imprisonment. Murphy
appeals the sentence, arguing that it is substantively
unreasonable because the district court gave undue weight to
his "past." We affirm.
uncontested portions of the presentence investigation report
calculated a total offense level of 19 and a criminal history
category of II, for an advisory Guidelines range of 33 to 41
months. The district court considered the sentencing factors
at 18 U.S.C. § 3553(a) and determined that an upward
variance to 160 months' imprisonment was warranted. After
acknowledging that Murphy had taken responsibility for his
actions and had a support system, the district court noted
the inherent danger posed by a bank robbery and based its
upward variance primarily on Murphy's criminal history.
Murphy's criminal history included two prior convictions
for bank robbery, only one of which was scored with criminal
history points, and two prior convictions for robbery in the
second degree, neither of which received criminal history
points. From his criminal history and his poor performance on
correctional supervision, the district court concluded that
there was a high likelihood that Murphy would commit similar
offenses when released from prison.
review a district court's sentence in two steps: first,
we review for significant procedural error; and second, if
there is no significant procedural error, we review for
substantive reasonableness." United States v.
Sadler, 864 F.3d 902, 904 (8th Cir. 2017) (quoting
United States v. O'Connor, 567 F.3d 395, 397
(8th Cir. 2009)). "We review the substantive
reasonableness of a sentence under a deferential
abuse-of-discretion standard, considering the totality of the
circumstances." United States v. Ballard, 872
F.3d 883, 885 (8th Cir. 2017). "A district court abuses
its discretion when it (1) fails to consider a relevant
factor that should have received significant weight; (2)
gives significant weight to an improper or irrelevant factor;
or (3) considers only the appropriate factors but in weighing
those factors commits a clear error of judgment."
United States v. Long, 870 F.3d 792, 799 (8th Cir.
2017) (quoting United States v. Feemster, 572 F.3d
455, 461 (8th Cir. 2009) (en banc)).
extent that Murphy now alleges that the district court
committed procedural error, we review for plain error because
Murphy failed to raise any such objection below. See
United States v. Cottrell, 853 F.3d 459, 462 (8th Cir.
2017). "Plain error is an error that is plain and that
affects a defendant's substantial rights."
Sadler, 864 F.3d at 904 (quoting
O'Connor, 567 F.3d at 397). "Only if the
plain error 'seriously affects the fairness, integrity or
public reputation of judicial proceedings' will we
correct the error." Id. (quoting
O'Connor, 567 F.3d at 397).
we find no error, plain or otherwise, in the district
court's imposition of Murphy's 160-month sentence,
nor do we find that the sentence is substantively
unreasonable. Contrary to Murphy's claim, the district
court adequately explained the sentence imposed and its
deviation from the Guidelines range. Further, the district
court considered all of the § 3553(a) sentencing factors
and had "substantial latitude to determine how much
weight to give the various factors." United States
v. Williams, 791 F.3d 809, 811 (8th Cir. 2015) (quoting
United States v. Timberlake, 679 F.3d 1008, 1012
(8th Cir. 2012)). The district court was permitted to
conclude that the Guidelines failed to adequately account for
Murphy's prior criminal history, both scored and
unscored, and his likelihood to reoffend. See United
States v. Barrett, 552 F.3d 724, 726 (8th Cir. 2009)
("Section 3553(a) allows courts to vary upward based on
an underrepresented criminal history or recidivism.").
In light of the record, we cannot say the district court
abused its discretion when sentencing Murphy.
judgment of the district ...