                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-1044
                                   ___________

United States of America,              *
                                       *
            Plaintiff – Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
Daine Joseph Adam Linderman,           *
                                       *
            Defendant – Appellant.     *
                                  ___________

                             Submitted: October 23, 2009
                                Filed: November 30, 2009
                                 ___________

Before LOKEN, Chief Judge, MURPHY and MELLOY, Circuit Judges.
                             ___________

MURPHY, Circuit Judge.

      Daine Linderman pled guilty to attempted carjacking in violation of 18 U.S.C.
§ 2119, use of a firearm in a crime of violence in violation of 18 U.S.C. §
924(c)(1)(A), and possession of a firearm by a felon in violation of 18 U.S.C. §
922(g)(1). The district court1 sentenced Linderman to 282 months imprisonment, at
the top of his advisory range under the United States Sentencing Guidelines.
Linderman appeals, arguing that the district court abused its discretion by



      1
       The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
inadequately considering his personal history and characteristics and by imposing a
substantively unreasonable sentence. We affirm.

                                           I.

       On August 24, 2007 police officers went to Daine Linderman's residence in
Hudson, Wisconsin to arrest him on a warrant for fleeing a police officer.2 As the
officers cleared the apartment building, Linderman mixed and ingested a cocktail
containing as many as 200 ecstasy pills and several grams of methamphetamine. He
was able to escape the apartment building, reach his car outside, and then speed away
in a hail of gunfire. Linderman sustained gunshot wounds in his abdomen and leg
before fleeing across the St. Croix River into Minnesota, where he crashed his car near
the Bungalow Inn in Lakeland. Then he proceeded on foot into the surrounding
neighborhood armed with a .223 caliber rifle and a .45 caliber semi-automatic
handgun.

        Linderman entered a nearby home where he was met by a husband and wife
whose two children were sleeping upstairs. Aware that he needed immediate medical
attention, Linderman pointed the rifle at the inhabitants and demanded they drive him
to a hospital. He led them at gunpoint to the garage, but the husband was able to swat
the rifle out of Linderman's hands before he could force them into the car. As the two
wrestled, Linderman grabbed the handgun which had been concealed in his waistband
and shot the husband in the upper buttocks. Despite his injuries, the husband was able
to subdue Linderman until the police arrived.



      2
        Linderman disputes some of the facts surrounding the events in Wisconsin
because they are the subject of an independent prosecution there. At the parties' joint
request, the district court stated it would not rely upon the Wisconsin events in making
its sentencing determinations, but would retain them in the presentence investigation
report as background information. Accordingly, they are recounted here as
background only and are limited to those facts discussed in Linderman's brief.
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       As a result of the events in Minnesota, Linderman was indicted for attempted
carjacking in violation of 18 U.S.C. § 2119, use of a firearm in a crime of violence in
violation of 18 U.S.C. § 924(c)(1)(A), and possession of a firearm by a felon in
violation of 18 U.S.C. § 922(g)(1). He pled guilty to each offense. The district court
calculated the advisory sentencing guideline range to be 250 to 282 months. That was
based on Linderman's offense level of 27 and criminal history category VI, plus a 120
month mandatory consecutive term for his conviction for using a firearm in a crime
of violence. Neither party objected to the guideline calculations.

      Linderman requested a sentence of 240 months imprisonment, citing as
mitigating factors his personal history and characteristics. After hearing arguments
from both parties and Linderman's allocution, the district court observed,

      The facts surrounding your criminal behavior just cry out for
      punishment. . . . [Your attorney] has done a wonderful job of explaining
      who you are, and you're articulate in your explanations of what you did
      and what remorse that you may have. This is one of the few times I can
      say that the sentence I'm going to give you is a sentence that is not long
      enough. I don't think you should see the light of day, and I don't say that
      very often. [It is] [v]ery fortunate no one got killed in this crime spree.

The district court then imposed a 282 month prison sentence, at the top of the advisory
guideline range. Linderman's appeal followed.

                                          II.

       We review the sentence imposed by the district court under a deferential abuse
of discretion standard. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009)
(en banc). We must first determine whether the district court committed a significant
procedural error, such as "'failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the [18
U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence.'" Id. (quoting Gall v. United States,

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128 S. Ct. 586, 597–98 (2007)). The district court also abuses its discretion under §
3553(a) when it “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 in weighing those factors commits a
clear error of judgment.” Id.

       Because Linderman failed to raise his procedural objections at the sentencing
hearing, our review is for plain error. Fed. R. Crim. P. 52(b). The sentence imposed
by the district court may be reversed only if Linderman shows that the court
committed error that was plain, that affected his substantial rights, and that "'seriously
affects the fairness, integrity, or public reputation of judicial proceedings.'" United
States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc) (quoting United States
v. Johnson, 520 U.S. 461, 467 (1997)). Moreover, we will not conclude that
Linderman's substantial rights were affected unless "[he] show[s] a 'reasonable
probability,' based on the appellate record as a whole, that but for the error he would
have received a more favorable sentence." Id. at 552.

       Linderman first alleges that the district court gave inadequate consideration to
the allegedly mitigating facets of his personal history and characteristics. He stresses
that at a young age he had to deliver drugs for his mother who later abandoned him
to be raised in group homes and foster care and that he had led a law abiding life for
a period of over a year beginning in November 2005 (when he was released from an
18 month prison term for second degree assault with a dangerous weapon). Despite
Linderman's allegation that this information was "ignored," the district court clearly
considered it. It adopted the findings in the presentence investigation report, which
discussed that information at length. It also heard extensive argument on this specific
point from Linderman's attorney, whom it complimented for doing a "wonderful" job
of conveying Linderman's history and characteristics. In its statement of reasons, the
district court stated expressly that it had considered Linderman's history and
characteristics but that it had concluded that a sentence at the top of his guideline

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range was nevertheless necessary given his history of violent offenses and the
"outrageousness of his current offense."

       On this record, we cannot conclude that the district court plainly erred since it
was "clear from the record that [it had] actually considered the § 3553(a) factors in
determining the sentence." United States v. Walking Eagle, 553 F.3d 654, 659 (8th
Cir. 2009) (internal quotation marks and citation omitted). Moreover, the district
court stated expressly that the sentence imposed was "not long enough." Thus,
Linderman has failed to establish a reasonable probability that he would have received
a more favorable sentence had the district court been more impressed with the
putatively mitigating facets of his history and characteristics. See Pirani, 406 F.3d at
550–52.

       Linderman next argues that the district court procedurally erred by basing its
sentencing decision on its disappointment that he had not qualified for an armed career
criminal sentencing enhancement under U.S.S.G. § 4B1.4. The district court stated
that "things fell [Linderman's] way" and that "had [he] been considered an armed
career criminal, [his] sentence would have been much higher." Yet those statements
alone do not warrant the conclusion that the district court was dissatisfied with
Linderman's guideline range or that that was the basis for his sentence. Rather, in its
statement of reasons, the district court expressly stated that the sentence was necessary
to reflect the seriousness of the offense, to provide adequate deterrence to Linderman
and others, and to protect the public from Linderman, who had a substantial criminal
history that included other violent offenses. The district court did not commit error,
plain or otherwise. See Pirani, 406 F.3d at 550.

       Linderman's final procedural objection is to the district court's findings that he
is a "dangerous and violent individual," that he was fortunate no one was killed during
his "crime spree," and that he "should [not] see the light of day." The first two
findings have ample support in the record, which details Linderman crashing and

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abandoning his car, holding a family at gunpoint, and shooting an innocent victim.
The third statement is a rational conclusion made by the district court after it had
considered the § 3553(a) factors.

       We must also determine whether the district court abused its discretion by
imposing a sentence that is substantively unreasonable. See Feemster, 572 F.3d at 461
(citing Gall, 128 S. Ct. at 597). Linderman challenges the substantive reasonableness
of his sentence, arguing that it is greater than necessary to accomplish the sentencing
purposes identified in § 3553(a). In contrast to his procedural objections, Linderman's
failure to object at the sentencing hearing does not limit our review of the substantive
reasonableness of the sentence to plain error. See United States v. Wiley, 509 F.3d
474, 477 (8th Cir. 2007). Rather, our review is for an abuse of discretion. Feemster,
572 F.3d at 461. A sentence falling within the applicable guideline range may be
presumed to be substantively reasonable. United States v. Garcia, 512 F.3d 1004,
1006 (8th Cir. 2008) (citing Rita v. United States, 551 U.S. 338, 347 (2007)). As
Linderman's sentence came within the applicable guideline range and is amply
supported by the record, we conclude that the sentence is not substantively
unreasonable and that the district court did not abuse its discretion.

                                          III.

      Accordingly, we affirm the judgment of the district court.

                        _____________________________




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