                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-2331
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                              Jesse James DeMarrias

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________

                    Appeal from United States District Court
                   for the District of South Dakota - Aberdeen
                                  ____________

                             Submitted: May 18, 2018
                               Filed: July 12, 2018
                                  ____________

Before SHEPHERD, KELLY, and GRASZ, Circuit Judges.
                           ____________

SHEPHERD, Circuit Judge.

       Jesse James DeMarrias appeals his sentence of a lifetime term of supervised
release. We affirm.
                                   I. Background

       In March 2010, 21-year-old DeMarrias engaged in sexual acts with a 12-year-
old female. He later pled guilty to sexual abuse of a minor in violation of 18 U.S.C.
§§ 1153 and 2243(a), and the district court1 sentenced him to 37 months
imprisonment to be followed by 10 years of supervised release. His supervised
release commenced in May 2013, but was revoked two times: in May 2014, after he
assaulted a staff member and was terminated from his placement center, and in May
2015, after he was again terminated from his placement center. Following each
revocation, the district court sentenced DeMarrias to 12 months imprisonment and 3
years of supervised release.

       In November 2016, DeMarrias admitted to having violated the terms of his
supervised release yet a third time by assaulting a police officer. The district court
held a revocation hearing on January 5, 2017 (“initial hearing”), in which the court
announced its intent to impose a sentence of 24 months imprisonment and 2 years of
supervised release. Immediately thereafter, DeMarrias’s counsel requested
DeMarrias undergo a psychological examination. The district court ordered the
Bureau of Prisons to conduct the examination and deferred imposing a sentence until
it could consider the results.

      The report from the examination diagnosed DeMarrias with personality
disorder with borderline antisocial features2 and paraphilic disorder: a condition
characterized by abnormal sexual desires that can manifest in deviant sexual


      1
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
      2
      The report stipulated, however, that its “subjective impressions should be
viewed with caution” because the results of one of the tests indicated “excessive
exaggeration and/or fabrication of psychological problems.”

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behavior. The report found DeMarrias was at “significant risk of recidivism” for
deviant behaviors, including sexual behavior with minors. In conclusion, the report
stated DeMarrias “should be closely monitored upon release from incarceration,”
finding his “difficulties are of a characterological and pervasive nature, and will
likely prove, [and] have proven, resistant to change.”

      After receiving the report, the district court held a final revocation hearing on
June 12, 2017 (“final hearing”). The court found the report “alarming” and sentenced
DeMarrias to 24 months imprisonment and supervised release for life.

                                     II. Discussion

        We review a sentence imposed upon revocation of supervised release under a
“deferential-abuse-of-discretion standard.” United States v. Johnson, 827 F.3d 740,
744 (8th Cir. 2016) (internal quotation marks omitted). “This standard requires us
first to ensure that the district court committed no significant procedural error and
second, if there is no procedural error, to ensure the sentence was substantively
reasonable.” Id. (internal quotation marks omitted).

       Although DeMarrias does not frame his argument as a procedural challenge,
he claims, in passing, that the district court failed to consider the 18 U.S.C. § 3553(a)
factors and failed to adequately explain its reasoning, both of which constitute
procedural errors. United States v. Williams, 624 F.3d 889, 896 (8th Cir. 2010).
Thus, out of an abundance of caution, we first consider whether the district court
erred procedurally.

       When revoking supervised release and imposing a new sentence, a district
court should consider the factors set forth in § 3553(a). The court need not, however,
“mechanically list every § 3553(a) consideration.” United States v. White Face, 383
F.3d 733, 740 (8th Cir. 2004). “If it is evident the district court was aware of the

                                          -3-
relevant factors in imposing the sentence, we may affirm the sentence without
specific findings on each factor.” Johnson, 827 F.3d at 745.

       In addition, the court must “adequately explain the chosen sentence.” United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (internal quotation
marks omitted). “In explaining the sentence[,] the district court need only ‘set forth
enough to satisfy the appellate court that [it] has considered the parties’ arguments
and has a reasoned basis for exercising [its] own legal decisionmaking authority.’”
United States v. Moore, 565 F.3d 435, 437 (8th Cir. 2009) (quoting Rita v. United
States, 551 U.S. 338, 356 (2007)).

       At the initial hearing, the district court explicitly stated it was required to
consider the § 3553(a) factors and would do so. There is, then, no doubt the court
was aware of the relevant factors. Johnson, 827 F.3d at 745. At the final hearing, the
court specifically considered the nature and circumstances of DeMarrias’s offense;
his criminal history—including his repeated violations of supervised release; his
current mental state; and his risk of recidivism. Accordingly, we are satisfied that the
court properly considered the § 3553(a) factors. See id. (finding no procedural error
where court “considered [defendant’s] history, characteristics, and conduct”).

       We are also satisfied with the district court’s explanation of DeMarrias’s
sentence. At the final hearing, the district court imposed a much longer term of
supervised release than first contemplated at the initial hearing. But, the court
explained its decision to do so based on the psychological examination, which the
court found “alarming” and “very damaging” to DeMarrias. Specifically, the court
noted DeMarrias’s mental diagnoses, his “significant risk of recidivism,” and his lack
of motivation “to change his criminal thinking and behavior.” Because the court
provided a “reasoned basis” for the heightened sentence, which was grounded in
§ 3553(a) considerations, we find no procedural error. Moore, 565 F.3d at 437
(internal quotation marks omitted).

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       We turn now to DeMarrias’s primary challenge to the substantive
reasonableness of a lifetime term of supervised release. A sentence is substantively
unreasonable if the district court “fails to consider a relevant factor that should have
received significant weight, gives significant weight to an improper or irrelevant
factor, or considers only the appropriate factors but commits a clear error of judgment
in weighing those factors.” Id. at 438 (internal quotation marks omitted). “We afford
the court wide latitude to weigh the § 3553(a) factors in each case and assign some
factors greater weight than others in determining an appropriate sentence.” United
States v. White, 816 F.3d 976, 988 (8th Cir. 2016) (internal quotation marks omitted).
“Just because we might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.” United States v.
Boneshirt, 662 F.3d 509, 517 (8th Cir. 2011) (internal quotation marks omitted).
Thus, it is an “unusual case when we reverse a district court sentence—whether
within, above, or below the applicable Guidelines range—as substantively
unreasonable.” Feemster, 572 F.3d at 464 (en banc) (internal quotation marks
omitted).

      In this case, a lifetime term of supervised release is both statutorily permissible,
18 U.S.C. § 3583(k), and within the United States Sentencing Guidelines range for
DeMarrias’s offense, USSG § 5D1.2(b)(2). We presume a sentence within the
Guidelines range is reasonable, and DeMarrias “bears the burden to rebut [that]
presumption.” United States v. Phillips, 785 F.3d 282, 284 (8th Cir. 2015) (internal
quotation marks omitted). We find he has failed to do so.

      DeMarrias first argues the district court gave too much weight to the
psychological report, which he claims provided little new information and did not
warrant supervised release for life. We acknowledge the district court’s move from
two years of supervised release to a lifetime of supervised release was a substantial
jump; nevertheless, we find the sentence imposed was within the court’s broad

                                           -5-
discretion. As discussed above, the report diagnosed DeMarrias with paraphilic
disorder, which can manifest in deviant sexual behavior. It also found DeMarrias was
at “significant risk of recidivism” for deviant behaviors, including sexual behavior
with minors. Ultimately, the report concluded DeMarrias “should be closely
monitored upon release from incarceration” because his “difficulties are of a
characterological and pervasive nature, and will likely prove, [and] have proven,
resistant to change.” In light of these findings, the district court did not abuse its
discretion in determining a heightened sentence of supervised release for life was
warranted.

       In fact, we affirmed a lifetime term of supervised release under similar
circumstances in United States v. James, 792 F.3d 962 (8th Cir. 2015). Like
DeMarrias, James violated the terms of his supervised release after being convicted
of engaging in an unlawful sexual act with a minor. Although James had only been
convicted of one sex offense, he had a long history of sexual deviance. Id. at 965.
We found the district court did not abuse its discretion in sentencing James to a
lifetime term of supervised release based on James’s sexual deviance and
“questionable” likelihood of recovery from his mental diagnoses. Id. at 969.

        DeMarrias claims he, unlike James, does not have a pattern of sexual deviance.
It is true that DeMarrias does not have the same lengthy history of sexual deviance
as James. Even so, in addition to his conviction for sexually abusing a 12-year-old,
DeMarrias was accused of inappropriately touching a 9-year-old; his PSR suggests
possible possession of child pornography; and the psychological report diagnosed
him with paraphilic disorder. DeMarrias also claims his likelihood of recovery is not
“questionable.” But, the psychological report indicates he is “at significant risk of
recidivism” and his “difficulties . . . will likely prove, have proven, resistant to
change.” Indeed, his resistance to change is evidenced by the fact that this is his third
revocation of supervised release. Two of his revocations were predicated on violent
behavior. Moreover, the district court noted “that criminal activity gives him an

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adrenaline high, and he feels no remorse after completion of such behavior.” Initial
Sent. T. at 9. Although DeMarrias’s sexual deviancy and mental diagnoses do not
rise to the level of James’s, we nevertheless find them sufficient justification for
affirming the district court’s sentence. See James, 792 F.3d at 969.

       DeMarrias also claims his sentence is unreasonable under several of the
§ 3553(a) factors. Specifically, he argues that his repeated violations of supervised
release show the district court miscalculated the need “to afford adequate deterrence”
and to provide “correctional treatment” when imposing supervised release for life.
18 U.S.C. § 3553(a)(2). In hopes of attaining an alternative sentence, DeMarrias
admits—with surprising candor—that he is “unlikely . . . [to] comply with any
supervised release program he is assigned.” We find this argument unconvincing.
The district court was well aware of DeMarrias’s repeated violations and specifically
acknowledged DeMarrias’s aversion to supervised release. Ultimately, however, the
court found DeMarrias must learn to follow the rules. The court told DeMarrias that
if he were to “start[] living a productive and law-abiding life,” the court would
reconsider the length of his supervised release. The court also suggested DeMarrias
could benefit from the supervision of law enforcement officials, who “are trying to
help him, not harm him.” Indeed, the special conditions of DeMarrias’s supervision
include provisions for mental health and sex offender treatment. Because the district
court did not clearly err in weighing these § 3553(a) considerations, we find the
sentence imposed—while severe—was not substantively unreasonable.

                                   III. Conclusion

      For these reasons, we affirm the district court’s sentence.




                                         -7-
KELLY, Circuit Judge, dissenting.

       The district court initially intended to give DeMarrias two years of supervised
release but, after reading the report of a psychological evaluation, instead sentenced
him to supervised release for life. Reading the same report, I cannot construe it to
justify a lifetime of punishment, and therefore respectfully dissent.

       The law is clear: supervised release is a form of punishment. Samson v.
California, 547 U.S. 843, 850 (2006) (“Federal supervised release . . . is meted out in
addition to, not in lieu of, incarceration.” (cleaned up)); United States v. Jackson, 866
F.3d 982, 985 (8th Cir. 2017) (“Supervised release is a ‘form of criminal sanction
imposed by a court upon an offender after verdict, finding, or plea of guilty.’”
(quoting Griffin v. Wisconsin, 483 U.S. 868, 874 (1987))). Thus, under the federal
sentencing regime, the length of supervised release must be “sufficient, but not
greater than necessary” to reflect the seriousness of the offense, deter further criminal
conduct, protect the public, and provide the defendant with needed training and
treatment. 18 U.S.C. § 3553(a).

       The facts in the report are also clear. The forensic psychologist wrote that
DeMarrias “was previous[ly] convicted of Sexual Abuse of a Minor. In addition, the
PSR also contains information regarding another possible sexual abuse of a minor
arrest. Therefore, the diagnosis of Unspecified Paraphillic Disorder appears to be an
appropriate classification for this individual.” (Emphasis added.) The report goes on
to acknowledge that an “unspecified” diagnosis was selected “to communicate a
degree of diagnostic uncertainty” because of “the limited collateral information
available.” These passages make clear that DeMarrias’s diagnosis was based entirely
on information that the district court already had when it said it intended to sentence
DeMarrias to two years of supervised release. No other information in the report
supports the diagnosis. The report simply affixed an “unspecified” diagnostic label
to facts the district court already knew.

                                          -8-
       Given this dearth of new information, and the fact that none of DeMarrias’s
prior revocations were based on sexual misconduct, the key question is whether the
report’s evaluation of DeMarrias’s prognosis—that his “difficulties are of a
characterological and pervasive nature, and will likely prove, [and] have proven,
resistant to change”—is sufficient to justify a lifetime of punishment. DeMarrias’s
prognosis, which reflects the evaluating psychologist’s professional expertise and
experience, may very well warrant an extended term of supervised release. But a
lifelong sentence is different. DeMarrias was 28 years old at sentencing, so a lifetime
of supervised release means he will likely spend many decades under the supervision
of the United States Probation Office. And while all supervised release sentences are,
broadly speaking, related to deterrence, protection of the public, and provision of
treatment, the duration of this sentence is not reasonable given that it is based on such
limited evidence. In my view, it exceeds the permissible bounds of discretion. See
United States v. Feemster, 572 F.3d 455, 461–62 (8th Cir. 2009) (en banc).

       For these reasons, I would vacate the term of supervised release and remand
for resentencing.
                       ______________________________




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