                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1233
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                              Ronald William Swallow

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

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

                             Submitted: March 12, 2018
                               Filed: June 14, 2018
                                  [Unpublished]
                                  ____________

Before GRUENDER, BEAM, and KELLY, Circuit Judges.
                          ____________

PER CURIAM.

      In 2015, Ronald Swallow robbed three casinos in Rapid City, South Dakota.
During each robbery, Swallow brandished a firearm, took money, and forced casino
employees to remain in the bathroom while he fled. A superseding indictment
charged Swallow with several counts related to these robberies. Pursuant to a written
plea agreement, Swallow pleaded guilty to two counts: interference with commerce
by robbery, in violation of 18 U.S.C. § 1951, and use and brandishing of a firearm
during the commission of a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii). In exchange for pleading guilty, the Government agreed to
dismiss the remaining counts.

       Though initially reluctant, the district court1 granted a downward departure
from the advisory sentencing guidelines range for the robbery count and sentenced
Swallow to time served. For the brandishing count, the court sentenced Swallow to
ten years’ imprisonment after departing upward sua sponte from the guidelines range
of seven years, which is the mandatory minimum under § 924(c)(1)(A)(ii).

       On appeal, Swallow argues that he lacked adequate notice of the upward
departure. Under Federal Rule of Criminal Procedure 32(h), a district court must
provide reasonable notice that it is contemplating a departure unless the ground for
the departure is identified either in the presentence report or in a party’s prehearing
submission. In this case, the presentence investigation report identified the dismissed
charges as a possible ground for an upward departure under United States Sentencing
Guidelines (“U.S.S.G.”) § 5K2.21. During sentencing, the district court did not
specifically reference the guidelines sections that justified the upward departure, but
it subsequently filed a statement of reasons for the sentence. Instead of relying on
§ 5K2.21, however, the court listed U.S.S.G. §§ 5K2.0 (aggravating circumstances),
5K2.3 (extreme psychological injury), 5K2.4 (abduction or unlawful restraint), and
5K2.6 (weapon) as grounds for the departure. Besides objecting to the alleged lack
of notice, Swallow argues that none of the guidelines provisions cited by the district
court support the upward departure. In particular, he contends that the guidelines
range already accounted for his brandishing of the weapon, that these were “garden
variety armed robberies with nothing atypical or excessive about the kind of


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

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abduction and restraint employed,” and that there is no evidence that his victims’
injuries were excessive compared to similarly situated victims.

       At his sentencing hearing, Swallow did not object after the court announced the
upward departure, and he agreed that there was no legal reason why the sentence
should not be imposed. Swallow also did not file a motion after the hearing for the
court to correct his sentence. See United States v. Leppa, 469 F.3d 1206, 1208 (8th
Cir. 2006) (“[E]ven if the timing of the error makes a contemporaneous objection
impractical, a defendant’s timely Rule 35 motion would alert the sentencing court to
the error in the first instance and provide it the opportunity to correct itself.”).
Because Swallow did not object to the upward departure, we review for plain error.
See United States v. Brave Bull, 828 F.3d 735, 739 (8th Cir. 2016). To establish plain
error, Swallow must show: “(1) an error; (2) that is plain; (3) that affects substantial
rights; and (4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” See id.

       Even assuming that the district court committed an error that is plain by failing
to provide notice and by departing upward on the basis of §§ 5K2.0, 5K2.3, 5K2.4,
and 5K2.6, Swallow has failed to show that the error affected his substantial rights.
An error affects substantial rights if there is “a reasonable probability, based on the
appellate record as a whole, that but for the error he would have received a more
favorable sentence.” United States v. Linderman, 587 F.3d 896, 899 (8th Cir. 2009)
(internal quotation marks omitted).

       The record makes clear that the district court consistently viewed a seven-year
sentence as inadequate and that there was no reasonable probability that Swallow
would receive a sentence below ten years. According to Swallow, because the district
court overcame its reluctance to depart downward on the robbery count after hearing
the parties’ arguments at sentencing, the court similarly might have altered its
position on the brandishing count had Swallow received notice and an opportunity

                                           -3-
to voice his concerns. But the court ultimately imposed the ten-year sentence “in the
face of a joint recommendation both from the defense attorney and the prosecution
for a seven-year sentence.” Indeed, having “carefully considered the case,” the court
concluded that the guidelines range of seven years was not “a sufficient sentence
given the nature of [his] conduct with three casino robberies using a firearm to
terrorize the employees and successfully steal over $27,000 during the course of these
robberies.” The district court also emphasized that “this is not one robbery, it is
three,” and it found that Swallow’s brandishing of a firearm was “at the top end of the
level of violence that we see in these casino robberies so far.”

       Considering the record as a whole, as well as the alternative possibility of an
upward departure pursuant to § 5K2.21, Swallow has not established a reasonable
probability that the court would have imposed a lesser sentence for what it regarded
as an “extraordinarily serious offense.” See Linderman, 587 F.3d at 899; Brave Bull,
828 F.3d at 741. For these reasons, we affirm Swallow’s sentence.
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