                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-1852
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  Kyle C. Yankton

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

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

                           Submitted: October 21, 2013
                             Filed: October 30, 2013
                                    [Published]
                                 ____________

Before BYE, SMITH, and BENTON, Circuit Judges.
                           ____________

PER CURIAM.

       Kyle C. Yankton was sentenced to 360 months’ imprisonment after pleading
guilty to second-degree murder in violation of 18 U.S.C. § 1111. He appeals, arguing
his sentence is substantively unreasonable. Having jurisdiction under 28 U.S.C. §
1291, this court affirms.
      Yankton was indicted for first-degree murder and burglary. Pursuant to a
written plea agreement, he pled guilty to second-degree murder. The Plea Agreement
provides that

      the base offense level upon which the Defendant’s sentence is to be
      initially calculated, pursuant to U.S.S.G. § 2A1.2, is 38; it is further
      stipulated that pursuant to U.S.S.G. § 5K2.1, the offense level should be
      increased by five levels, in that the United States dismissed two counts
      of First Degree Murder, both of which carried mandatory life sentences.
      Additionally, the Defendant is entitled to a three-level reduction for
      acceptance of responsibility as discussed in paragraph F of this plea
      agreement. The parties therefore stipulate that the total offense level is
      40.

The government agreed to recommend a sentence of imprisonment within the
applicable Guidelines range. Yankton agreed not to request a sentence less than the
range.

       The district court1 calculated a total offense level of 37—a base offense level
of 38, plus a two-level enhancement for the victim’s vulnerability, less a three-level
reduction for acceptance of responsibility.

      The government moved for a three-level upward departure, per the Agreement.
Yankton agreed to a total offense level of 40, per the Agreement. The district court
granted the motion and sentenced Yankton to 360 months’ imprisonment. Given his
Criminal History Category I and the total offense level 40, the Guidelines range was
292 to 365 months. The district court reviewed the violent nature of the crime, the
defenseless nature of the victim, the need for community safety, and the need for


      1
        The Honorable Jeffrey L. Viken, Chief Judge, United States District Court for
the District of South Dakota.

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deterrence. The court considered the positive aspects of Yankton’s life, including his
lack of criminal history and acceptance of responsibility.

       Yankton argues that his sentence is substantively unreasonable because it is
longer than necessary under the parsimony clause of 18 U.S.C. § 3553(a). A
sentence’s unreasonableness is reviewed for abuse of discretion. Gall v. United
States, 552 U.S. 38, 41 (2007). “[S]ubstantive appellate review in sentencing cases
is narrow and deferential. As the case law . . . since Gall demonstrates, it will be the
unusual case when we reverse a district court sentence—whether within, above, or
below the applicable Guidelines range—as substantively unreasonable.” United
States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (citation omitted).

       Yankton voluntarily exposed himself to a specific Guidelines range. He is not
permitted on appeal to challenge a sentence within that range. “‘A defendant who
explicitly and voluntarily exposes himself to a specific sentence may not challenge
that punishment on appeal.’” United States v. Jones, 639 F.3d 484, 487 (8th Cir.
2011), quoting United States v. Mickelson, 433 F.3d 1050, 1055-56 (8th Cir. 2006).
While Yankton did not completely waive his right to appeal his sentence in the
Agreement, stipulation to a sentence within the Guidelines range is an
acknowledgment that any sentence within the range is reasonable. Mickelson, 433
F.3d at 1056.

       Moreover, even ignoring the stipulation, Yankton has failed to show that the
sentence is substantively unreasonable. A Guidelines-range sentence enjoys a
presumption of reasonableness on appeal. Jones, 639 F.3d at 487 (citations omitted).
Yankton has not overcome this presumption. Contrary to his portrayal of the
sentencing proceedings, the district court considered the statutory factors in making
its decision, including Yankton’s positive life factors and the out-of-character nature
of the offense conduct. Yankton is not entitled to any specific sentence, but rather to
“an individualized assessment based on the facts presented.” Gall, 552 U.S. at 50.

                                          -3-
The sentencing transcript shows the district court made an individualized assessment
and adequately explained the chosen sentence.

       Even without the presumption of reasonableness, Yankton’s sentence is
justified by the sentencing factors in 18 U.S.C. § 3553(a), all discussed by the district
court. A sentence of 360 months for second-degree murder is not unreasonable under
the facts and circumstances of this case.

                                     *******

      The judgment of the district court is affirmed.
                     ______________________________




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