                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-3312
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                               Spencer Ray Fitzpatrick

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                      Appeal from United States District Court
                    for the Northern District of Iowa - Ft. Dodge
                                   ____________

                           Submitted: September 23, 2019
                             Filed: November 21, 2019
                                   ____________

Before SMITH, Chief Judge, WOLLMAN and BEAM, Circuit Judges.
                             ____________

SMITH, Chief Judge.

       Spencer Fitzpatrick pleaded guilty to one count of conspiracy to distribute
methamphetamine after having been previously convicted of a felony drug offense,
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), 846, and 851. The district court1

      1
        The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa.
sentenced Fitzpatrick to 223 months’ imprisonment. Fitzpatrick challenges the
substantive reasonableness of his sentence. He argues the district court erred in
denying his request for a downward variance by failing to properly consider his
difficult upbringing. We disagree and affirm.

                                   I. Background
      Fitzpatrick and another individual sold 26.6 grams of methamphetamine to a
confidential informant in a motel room. After the sale, law enforcement officers
entered the motel room, arrested Fitzpatrick and the other person, and seized another
26.22 grams of methamphetamine.

       Prior to sentencing, the probation office prepared a presentence investigation
report (PSR) that described Fitzpatrick’s criminal and personal history. The PSR set
Fitzpatrick’s base offense level at 30, see U.S.S.G. § 2D1.1(c)(5), and assigned him
a category VI criminal history based on his 28 criminal history points. In addition, the
probation office recommended application of the career offender enhancement due
to Fitzpatrick’s three prior convictions for controlled substance offenses. See U.S.S.G
§ 4B1.1(b)(1). The career offender enhancement increased Fitzpatrick’s offense level
to 37, and after adjustments for acceptance of responsibility, his total offense level
decreased to 34. Fizpatrick’s offense level of 34 and category VI criminal history
yielded an advisory Guidelines range of 262 months to 327 months’ imprisonment.

       At sentencing, Fitzpatrick requested a downward variance from the advisory
Guidelines range based on his difficult upbringing. Fitzpatrick explained that his
mother and adoptive father verbally and physically abused him in his early childhood.
His mother left him at the age of 6, and his adoptive father continued to abuse him
until the age of 12 when he entered state custody. Over the next four years, the State
of Iowa placed him in 17 group home facilities. At age 16, Fitzpatrick located his
biological father in Arizona and began living with him. At the time, Fitzpatrick’s
father abused alcohol, heroin, and cocaine.

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       After considering Fitzpatrick’s argument, the district court denied his request
for a downward variance. The district court expressly considered Fitzpatrick’s
difficult upbringing, but, given Fitzpatrick’s age, 42, refused to attribute his extensive
criminal history solely to his harsh rearing experiences. The district court explained
that Fitzpatrick’s recent criminal history outweighed his mistreatment. It specifically
noted that Fitzpatrick immediately resumed dealing methamphetamine after his
release from state prison. He had served less than 2 years of a 15-year prison
sentence. The district court also noted he had recently fired a gun into an occupied
residence containing five adults and six children. The district court did take
Fitzpatrick’s difficult upbringing into account along with the other sentencing factors
that must be considered under 18 U.S.C. § 3553(a). The district court applied an
agreed-upon downward departure using the bottom of the advisory Guidelines range
of 262 months’ imprisonment as the starting point. Fitzpatrick was sentenced to 223
months’ imprisonment.2

                                     II. Discussion
       When reviewing Fitzpatrick’s challenge to the substantive reasonableness of
his sentence, we review the district court’s sentence for an abuse of discretion. United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).

      An abuse of discretion occurs when: (1) a court fails to consider a
      relevant factor that should have received significant weight; (2) a court
      gives significant weight to an improper or irrelevant factor; or (3) a
      court considers only the appropriate factors but in weighing them
      commits a clear error of judgment.




      2
      The district court’s sentence included a reduction for a downward departure
of 15% from the bottom of the Guidelines range, which fell below the mandatory
minimum sentence of 240 months’ imprisonment.

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United States v. Williams, 624 F.3d 889, 899 (8th Cir. 2010). In our review of the
sentence, “we are to ‘take into account the totality of the circumstances, including the
extent of any variance from the Guidelines range.’” Feemster, 572 F.3d at 461
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). If Fitzpatrick’s sentence falls
within the Guidelines range, “then we ‘may, but [are] not required to, apply a
presumption of reasonableness.’” Id. (alteration in original) (quoting Gall, 552 U.S.
at 51).

      Fitzpatrick argues that the district court weighed an improper factor when it
considered that he was 42 years old at sentencing in determining that his difficult
upbringing weighed less heavily than a lifetime of crime. Based on this alleged error,
Fitzpatrick argues that the district court’s sentence was substantively unreasonable.
“We judge the substantive reasonableness of [a] sentence with reference to the factors
enumerated in 18 U.S.C. § 3553(a).” United States v. Wahlstrom, 588 F.3d 538, 547
(8th Cir. 2009). However, district courts may weigh certain sentencing factors more
heavily than others. United States v. Callaway, 762 F.3d 754, 760 (8th Cir. 2014).

       At sentencing, the district court fully considered each of the relevant § 3553(a)
factors and explained why Fitzpatrick’s criminal history outweighed his difficult
upbringing. Specifically, the district court noted that although Fitzpatrick had a very
rough childhood, his extensive criminal history over the decades since his childhood
diminished the weight the district court accorded Fitzpatrick’s upbringing. The
district court explained:

      Anybody with 28 criminal history points is going to have a hard time
      getting a variance, frankly, when it only takes 13 to be a criminal history
      category VI. The criminal history covers almost all of the boxes,
      firearms, drugs, theft, burglary, violence, forgery. It’s hard to imagine
      almost a crime Mr. Fitzpatrick hasn’t committed.




                                          -4-
            I’ve certainly taken into account his difficult upbringing. I
      understand that he did have difficult situations growing up, but also,
      once you reach the age of 40 or 42, the—it becomes more difficult to
      blame it on the upbringing, and I find that here.

Sent. Tr. at 15, United States v. Fitzpatrick, No. 17-cr-3058-LTS (N.D. Iowa Oct. 25,
2018), ECF No. 99.

      Based on these considerations, the district court explained that although
Fitzpatrick’s childhood was “a mitigating factor, it [did] not outweigh the incredibly
serious criminal history and the need to protect the public from further crimes.” Id.
“The fact the district court did not give [Fitzpatrick’s difficult upbringing] as much
weight as [Fitzpatrick] would have preferred does not justify reversal.” United States
v. Holdsworth, 830 F.3d 779, 786 (8th Cir. 2016) (internal quotation marks omitted).

      On these facts, the district court’s decision to deny Fitzpatrick’s request for a
downward variance based on his difficult upbringing was not an abuse discretion. See
United States v. Ruelas-Mendez, 556 F.3d 655, 658 (8th Cir. 2009).

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                       ______________________________




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