               United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 17-3512
                      ___________________________

                           United States of America

                                    Plaintiff - Appellee

                                       v.

                                Marvis Ballard

                                   Defendant - Appellant

                                ____________

                   Appeal from United States District Court
               for the Eastern District of Arkansas - Little Rock
                                ____________

                       Submitted: September 25, 2018
                         Filed: December 14, 2018
                               [Unpublished]
                               ____________

Before SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.
                              ____________
PER CURIAM.

      Marvis Ballard pleaded guilty to being a felon in possession of a firearm. 18
U.S.C. § 922(g)(1). Although the Sentencing Guidelines recommended a sentence
between 41 and 51 months in prison, the district court gave Ballard the statutory-
maximum sentence of 120 months after relying nearly exclusively on an inflated
assessment of Ballard’s criminal history. Because we conclude that the district
court procedurally erred in doing so, we vacate Ballard’s sentence and remand for
resentencing.

        When we review a sentence, “whether inside or outside the Guidelines
range, we apply a deferential abuse-of-discretion standard.” United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (internal quotation marks
and citation omitted). A district court abuses its discretion if it commits a
procedural mistake, such as “selecting a sentence based on clearly erroneous facts.”
Id. (citation omitted).

       The record shows that the district court misunderstood Ballard’s criminal
history. For example, the court stated that Ballard had a “history of just sheer
violence” and had been “beating on people and knocking people out consistently
from [2003] forward.” (Emphasis added). But the criminal-history section of the
presentence investigation report, which the district court adopted, suggests that
Ballard’s most recent violent offense occurred in 2005—twelve years before the
sentencing hearing.1 And the district court did not make a factual finding that
Ballard had committed other violent acts during those twelve years.

       The district court’s characterization of Ballard’s criminal history is
particularly significant because the court placed overwhelming weight on it. Near

      1
        To be sure, it appears that in 2004 and 2005, Ballard assaulted his then-
girlfriend. Even if Ballard has a violent history, however, the record does not show
that Ballard has consistently been violent since 2003.
                                          -2-
the beginning of the sentencing hearing, and even before calculating Ballard’s
advisory Guidelines range, the court explained that Ballard’s “record begs for ten
years. And that’s it.” (Emphasis added). The court also stated that Ballard’s
“history of just sheer violence” was why he needed “to be locked up for ten years.”
The court even expressed reluctance to hold a hearing to calculate the correct
Guidelines range at all given that it had already decided to impose the statutory-
maximum sentence.

      On these facts, we conclude that the district court procedurally erred when it
sentenced Ballard. Accordingly, we vacate Ballard’s sentence and remand for
resentencing.
                       ______________________________




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