                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-1371
                         ___________________________

                              United States of America,

                         lllllllllllllllllllllPlaintiff - Appellee,

                                            v.

       Ralph Chavous Duke, also known as Plookie, also known as Plukey,

                       lllllllllllllllllllllDefendant - Appellant.
                                       ____________

                     Appeal from United States District Court
                      for the District of Minnesota - St. Paul
                                  ____________

                           Submitted: February 15, 2019
                               Filed: July 31, 2019
                                  ____________

Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
                          ____________

COLLOTON, Circuit Judge.

       Ralph Duke was sentenced in 1990 to a term of life imprisonment plus forty
years for committing several serious drug trafficking and firearms offenses. A district
court later vacated his convictions on the firearms counts in light of an intervening
judicial decision, and the case was returned to the District of Minnesota for
resentencing. After considering the matter anew, the district court1 determined an
advisory guideline range of 360 months to life and sentenced Duke to a term of life
imprisonment. Duke argues that the district court made procedural errors and
imposed a substantively unreasonable sentence, but we disagree and affirm.

       Duke controlled all phases of a drug trafficking organization in the
Minneapolis/St. Paul area from 1984 through June 1989. He purchased cocaine
primarily from a Colombian-affiliated source in Houston or from sources in Los
Angeles. The cocaine was transported to Minnesota in vehicles owned by Duke and
driven by younger members of his drug trafficking organization. Duke then
distributed kilograms of cocaine to dealers for resale at the street level in smaller
quantities. Duke laundered the proceeds of drug sales by purchasing homes and cars
in the names of others. All told, Duke and his organization trafficked over fifty
kilograms of cocaine before law enforcement interrupted their operations. When
Duke was apprehended in May 1989, officers found two loaded handguns in his
bedroom and two assault shotguns and two AR-15 semi-automatic rifles in his
residence. The government charged at least twenty-five people as a result of the
investigation of Duke’s organization.

       In 1989, a jury convicted Duke on eleven charges arising from the drug
trafficking activity. The district court sentenced him to the statutory maximum
penalty on each count. Three counts carried concurrent terms of life imprisonment:
engaging in a continuing criminal enterprise (count 1), see 21 U.S.C. § 848 (1988),
aiding and abetting the attempt to possess with intent to distribute twenty kilograms
of cocaine (count 2), see id. §§ 841(a)(1), (b)(1)(A), 846; 18 U.S.C. § 2 (1988), and
conspiracy to possess with intent to distribute five kilograms or more of cocaine
(count 32), see 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (1988). Five other drug


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

                                         -2-
trafficking counts carried shorter terms that ran concurrent with the life sentences.
Three firearms convictions resulted in consecutive terms of thirty, five, and five
years, respectively, for a total of forty years’ imprisonment.2

       On appeal, this court affirmed the judgment in all respects but one: the court
ruled that the convictions on count 1 (continuing criminal enterprise) and count 32
(cocaine trafficking conspiracy) violated the Double Jeopardy Clause and remanded
with instructions to vacate one of those convictions. United States v. Duke, 940 F.2d
1113, 1120-21 (8th Cir. 1991). The district court vacated Duke’s conviction on count
1, but the life sentence was unchanged.

       In 2016, the district court reduced Duke’s sentence under 18 U.S.C.
§ 3582(c)(2), based on a retroactive amendment to the sentencing guidelines that
made certain drug offenders eligible for a two-level decrease in their base offense
level. See USSG Supp. to App. C, Amend. 782 (2014); USSG § 1B1.10(a)(1), (d),
(e)(1) (2014). In Duke’s case, the two-level decrease yielded a new guideline range
of 292 to 365 months for the drug trafficking charges, and the court sentenced him
to concurrent terms of 365 months on each of the seven drug convictions. The
consecutive terms for the firearms offenses were unaffected, so Duke’s new sentence
as of 2016 was 365 months plus forty years.

      Duke then petitioned for a writ of habeas corpus under 28 U.S.C. § 2241 in the
Central District of Illinois, invoking Bailey v. United States, 516 U.S. 137 (1995).
The court determined that Bailey required vacatur of Duke’s firearms convictions,



      2
       The five drug trafficking counts charged aiding and abetting the possession
with intent to distribute smaller quantities of cocaine (counts 4, 5, 6, 7, and 8), see 21
U.S.C. § 841(a)(1), (b)(1)(B) (1988); 18 U.S.C. § 2 (1988), and the three firearms
counts alleged using or carrying a firearm during and in relation to a drug trafficking
crime (counts 28, 29, and 30), see 18 U.S.C. § 924(c)(1) (1988).

                                           -3-
and then transferred the case to the District of Minnesota for resentencing. See Duke
v. Thompson, No. 17-cv-1024, 2017 WL 4397950, at *4-7 (C.D. Ill. Sept. 29, 2017).

       With the firearms convictions vacated, the district court recalculated Duke’s
advisory guideline range as 360 months to life imprisonment—the same range that
applied at the original sentencing in 1990. Although the retroactive guideline
amendment reduced the base offense level by two levels from the original hearing,
a firearms adjustment under USSG § 2D1.1(b)(1) now applied and offset the
reduction. The court again sentenced Duke to the statutory maximum terms on each
count: a term of life imprisonment on each of counts 2 and 32, and a term of forty
years on each of counts 4 through 8, all to run concurrently.

        On appeal, Duke first argues that the district court committed procedural error
at the resentencing by failing to consider adequately the sentencing factors under 18
U.S.C. § 3553(a). See Gall v. United States, 552 U.S. 38, 51 (2007). He complains
that the court “failed to address the detailed assessment of § 3553(a) factors offered
by the defense.” But a district court need not expressly address every § 3553(a)
factor if the record shows that they were considered. United States v. Clayton, 828
F.3d 654, 657 (8th Cir. 2016). The court here received and read Duke’s assessment
of the factors in his sentencing memorandum, heard oral arguments at the hearing
about the factors, and specifically referenced some of the factors when explaining the
chosen sentence. We presume that the court considered the arguments before it, see
United States v. Wisecarver, 644 F.3d 764, 774 (8th Cir. 2011), and we are satisfied
that the district court was aware of the relevant factors and considered them in
imposing sentence.

       Duke also complains that the district court provided an inadequate explanation
for the chosen sentence. See Gall, 552 U.S. at 50. Assuming without deciding that
Duke raised a proper objection to the adequacy of the court’s explanation, we
conclude that there was no procedural error.

                                         -4-
       In explaining its decision to impose a life term, the court remarked that while
the supportive letters submitted on Duke’s behalf were “heartfelt and compelling,”
they could not “undo the serious crimes committed by the Defendant over the course
of many years during which he not only flooded his community with drugs but also
corrupted numerous young people, many of whom were his family.” The court
emphasized “the staggering magnitude of the criminal activity involved,” and
concluded as follows: “The Court commends the Defendant for his rehabilitative
efforts while in prison and sincerely hopes that the Defendant has indeed changed,
but the Court simply cannot conclude that he should be released from prison.” The
court’s reason for choosing the life sentence was evident: the seriousness of Duke’s
crimes justified that punishment and outweighed any mitigating factors that favored
a lesser term. The record provides a basis for meaningful appellate review of the
sentence, and nothing more is required.

        Duke objects that the district court failed to provide an “individualized”
explanation for the sentence, because the court supposedly relied on a boilerplate
“script” that it used at other sentencing hearings. He highlights the court’s statement
that it had “taken into account the nature and circumstances of the instant offenses,
as well as the history and characteristics of the Defendant and [found] that the
sentence imposed is sufficient but not greater than necessary to afford adequate
deterrence to future criminal conduct.” That the court would echo language found in
§ 3553(a) is neither surprising nor inappropriate. The court is required to consider
the § 3553(a) factors in every case, and there is nothing wrong with using the same
words in each case to report that this obligation was discharged. Here, the court went
on to provide an individualized explanation for Duke’s sentence by discussing “the
staggering magnitude” of Duke’s crimes and Duke’s efforts at rehabilitation.

         Duke next argues that the court did not provide enough individualized
discussion. Citing the dictate that a district court “must explain [its] conclusion
that . . . an unusually harsh sentence is appropriate in a particular case with sufficient

                                           -5-
justifications,” id. at 46, Duke contends that the harsh sentence of life imprisonment
required more explanation. An “unusually harsh” sentence in this context, however,
means a sentence based on an upward “departure from the Guidelines” that is
“unusual” because it is outside the heartland represented by the advisory range. Id.
Where, as here, “a judge decides simply to apply the Guidelines to a particular case,
doing so will not necessarily require lengthy explanation.” Rita v. United States, 551
U.S. 338, 356-57 (2007). The court sentenced Duke within the advisory range, based
on evidence that Duke was the leader of a “huge” five-year cocaine trafficking
operation that “could easily sell seventy-five kilograms in two or three months.” See
Duke, 940 F.2d at 1115-16. Multiple undisputed paragraphs in the presentence report
catalogue details of Duke’s extensive criminal conduct. Given the information
readily available in the record, it was not incumbent on the district court to spell out
“the staggering magnitude” of Duke’s crimes in greater detail.

      Duke also insists that “a more fulsome statement of reasons was necessary” to
provide assurance that the judge “did not simply adopt the reasoning he applied when
he sentenced Mr. Duke in 1990.” Duke asserts that because the guidelines were
mandatory in 1990, but now are advisory after United States v. Booker, 543 U.S. 220,
233-34 (2005), the court was obliged to say something more and different to justify
imposing an identical sentence. But the guideline range was 360 months to life at
both proceedings, and Duke asked for a sentence of time served (396 months) at the
resentencing hearing. The court thus faced the same question each time: where
within the range to impose sentence. The advisory nature of the guidelines did not
require a different explanation for why the court selected a sentence at the top of the
guideline range. The court did address the intervening circumstance of Duke’s
conduct in prison, and explained that his rehabilitative efforts were insufficient to
overcome the seriousness of the crimes. We thus conclude that there was no
procedural error at sentencing.




                                          -6-
       Duke next contends that his life sentence is substantively unreasonable. The
substantive reasonableness of a sentence is reviewed under a deferential abuse-of-
discretion standard. Gall, 552 U.S. at 51. We presume that a sentence within the
advisory guideline range is reasonable. United States v. Lasley, 832 F.3d 910, 914
(8th Cir. 2016).

        Duke’s life sentence was within the advisory range of 360 months to life, but
Duke urges that we should not apply a presumption that the sentence is reasonable.
He argues that “a life sentence is qualitatively different from a term of years.” But
the basis for the presumption is the district court’s agreement with the
recommendation of the Sentencing Commission, see Rita, 551 U.S. at 350-51, and
that circumstance carries just as much weight when the recommended sentence is life
rather than a term of years. We have thus applied the presumption of reasonableness
to life sentences. See Lasley, 832 F.3d at 914.

       Duke points out that he already had served the equivalent of a 396-month
sentence, so the district court was constrained to choose among sentences within the
guideline range of 360 months to life. That circumstance, however, simply means
that the district court was choosing among sentences that would be presumed
reasonable on appeal; it is not a reason to forego the presumption. We can still
meaningfully review a sentence within the range for reasonableness. Duke also
asserts that the sentencing guidelines governing drug offenses lack an empirical basis
because they were derived from statutory penalties dictated by Congress. But even
where a guideline range does not reflect the empirical analysis of the Commission,
we still apply the presumption of reasonableness. See United States v. Werlein, 664
F.3d 1143, 1146 (8th Cir. 2011) (per curiam). If the guideline was effectively
dictated by Congress, then the district court’s agreement with the guideline range
signals an accord with Congress’s view, and that too is a “real-world circumstance”
that suggests reasonableness. See United States v. Ultsch, 578 F.3d 827, 831 (8th Cir.
2009); cf. Rita, 551 U.S. at 350-51.

                                         -7-
       On the question of substantive reasonableness, we conclude that the district
court did not abuse its direction in selecting a term of life imprisonment. Duke’s
principal complaint is that the court “gave undue weight to the seriousness of a thirty-
year-old offense” over his “exceptional institutional conduct over the last 29 years,
lack of criminal history, age, medical history, family ties, rehabilitation, remorse, and
low risk of recidivism.” When it comes to weighing the § 3553(a) factors, however,
the district court has wide latitude to assign some factors greater weight than others.
United States v. Johnson, 916 F.3d 701, 703 (8th Cir. 2019). Duke’s crimes were
serious: he was the leader of a large-scale drug trafficking conspiracy that introduced
hundreds of kilograms of cocaine into the community, and he possessed several
firearms in connection with his drug trafficking offenses. The district court acted
within its discretion in concluding that the gravity of Duke’s crimes and the need for
adequate general deterrence outweighed other factors and warranted a sentence at the
top of the range.

       Duke maintains that the district court gave insufficient weight to his
rehabilitative efforts in prison. It is true that a court at resentencing may consider
evidence of postsentencing rehabilitation, and that evidence may, in an appropriate
case, support a downward variance from the guideline range or a sentence at the
bottom of the applicable range. See Pepper v. United States, 562 U.S. 476, 481
(2011). But a district court is not required to reduce a defendant’s sentence based on
a showing of postsentencing rehabilitation; it is simply another factor for the court
to consider under § 3553(a). See id. at 505 n.17. Given the magnitude of Duke’s
offense conduct, it was reasonable under our deferential review for the court to
conclude that his rehabilitative efforts did not warrant a sentence below the top of the
guideline range.

       The judgment of the district court is affirmed. Duke’s pro se motion to remand
is denied.
                      ______________________________

                                          -8-
