                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-4317
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                Derrick D. West-Jones, also known as Derrick Jones

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                       for the District of Nebraska - Omaha
                                  ____________

                           Submitted: November 13, 2017
                              Filed: January 25, 2018
                                  [Unpublished]
                                  ____________

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

PER CURIAM.

       Having completed his term of imprisonment for conspiracy to distribute cocaine
base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1) and felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), Derrick West-Jones twice
violated the conditions of his supervised release. The first amended violation petition
was filed on May 4, 2016 and alleged that West-Jones assaulted his girlfriend and
used marijuana. The assault allegation was later dismissed, and the district court
sentenced West-Jones to time served for the drug use violation—one day in jail—to
be followed by the original term of supervised release. The second violation petition
was filed on September 2, 2016 and alleged that West-Jones forcibly entered an
apartment, causing injury to its occupant, and tested positive for marijuana on five
occasions. Once again, the other allegations were dismissed, and West-Jones admitted
to the drug use. This time the same district judge1 sentenced him to 14 months
imprisonment for the Grade C violation—the high end of the 8 to 14 months
recommended by the Sentencing Guidelines—and four years supervised release.
USSG § 7B1.4(a).

      West-Jones appeals his sentence, claiming that the district court was improperly
influenced by the dismissed allegations against him, that the court failed to adequately
explain its reasoning, and that the sentence is substantively unreasonable. We affirm.

       Because West-Jones did not raise these objections in the district court, we
review the procedural challenges for plain error. United States v. Miller, 557 F.3d
910, 916 (8th Cir. 2009). “To establish plain error, [West-Jones] must prove that (1)
there was error, (2) the error was plain, and (3) the error affected his substantial
rights.” Id.

       “[A] district court commits procedural error . . . by basing a sentence on
unproven, disputed allegations rather than facts.” United States v. Richey, 758 F.3d
999, 1002 (8th Cir. 2014). Here, we find no evidence that the district court considered
the dismissed allegations in determining West-Jones’s sentence. At the revocation
hearing, the court referred only to the drug use violation and specifically stated that




      1
      The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.

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it reviewed the amended revocation worksheet. The court then sentenced West-Jones
within the Guidelines range for the Grade C violation.

       West-Jones claims the length of his sentence indicates the court must have
taken the dismissed allegations into account. On the contrary, the district court had
ample reason for imposing a sentence at the high end of the Guidelines range. Upon
receiving leniency for his first violation, West-Jones resumed his marijuana use
shortly thereafter. See United States v. Hum, 766 F.3d 925, 928 (8th Cir. 2014)
(finding repeated violations after leniency relevant to sentencing). Moreover, because
the same judge presided over West-Jones’s original sentencing and his revocation
hearings, the court was well aware of West-Jones’s history and characteristics. See
Miller, 557 F.3d at 918.

       Even assuming the court plainly erred by offering an inadequate explanation for
the sentence, we find the sentence imposed did not violate West-Jones’s substantial
rights: West-Jones admitted to violating the conditions of his supervised release, the
sentence imposed was within the Guidelines range for that violation, and it did not
exceed the statutory maximum. USSG § 7B1.4(a) (setting advisory Guideline range
of 8 to 14 months imprisonment); 18 U.S.C. 3583(e)(3) (setting statutory maximum
of 36 months imprisonment); cf. United States v. Franklin, 397 F.3d 604, 607 (8th Cir.
2005).

       As to West-Jones’s claim that the sentence is substantively unreasonable, we
find that—based on the reasons above—the district court did not abuse its discretion
by imposing a sentence within the Guidelines range. See Miller, 557 F.3d at 916
(standard of review); USSG § 7B1.4(a) (range of imprisonment for Grade C
violation); United States v. Petreikis, 551 F.3d 822, 824 (8th Cir. 2009) (applying
presumption of substantive reasonableness to revocation sentence within Guidelines
range).



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We therefore affirm West-Jones’s sentence.
                ______________________________




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