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Click here for the full text of this decision FACTS:Larry Peltier pleaded guilty to one count of possessing a firearm as a convicted felon in violation of 18 U.S.C. �922(g)(1). While executing a warrant to search for illegal narcotics in Peltier’s residence, agents found cocaine residue, large amounts of cash and an old, rusty .12 gauge shotgun stashed in an outdoor shed. Peltier had felony convictions for cocaine distribution, simple burglary and second degree battery. He admitted that he knew those felonies prohibited him from possessing the firearm but said that he kept it for personal protection. Peltier had a base offense level of 20, subject to a three-point reduction for acceptance of responsibility. He also had a criminal history category of V, based on his five prior convictions: the three felony convictions and two misdemeanor drunk driving convictions. This resulted in a guidelines range of 46 to 57 months. Peltier urged the district court to consider deviating below the guidelines range and suggested that he would benefit from a halfway house. The court, however, explained at the sentencing hearing that the guideline range did “not adequately address the very true and real concerns this Court has about Mr. Peltier [and] the policies and the factors reflected in 18 U.S.C. �3553(a).” Specifically, the court noted Peltier’s long criminal history, his violence and anger problems, the dangers posed by his drunk driving and his addiction to drugs. The court invoked numerous �3553(a) factors, including the need for the sentence to promote respect for the law, to afford adequate deterrence, to protect the public from future crimes and to provide needed “vocational training, medical care, or other correctional treatment in the most effective manner.” The court added, “I don’t think he’s going to be able to beat his addiction on the outside by himself. I don’t think he’s going to be able to handle his anger problems on the outside by himself. I don’t think he has the means to be able to have the money to be able to get psychological counseling he needs in order to keep him from hitting the next time someone calls him a derogatory term or driving under the influence of either drugs or alcohol, and he could kill somebody next time.” The court sentenced Peltier to 120 months, which is the statutory maximum penalty and more than twice the maximum under the advisory guideline range. The court further explained, “[I]n part this was done to give him full opportunity to be able to get the treatment that he needs, to get the counseling that he needs because I don’t think a one- or two-year program is going to help this.” The court recommended that Peltier be placed in a facility with the most extensive drug treatment program. Peltier did not object to the sentence. HOLDING:Affirmed. Ordinarily, the court stated that it reviewed nonguideline sentences for unreasonableness and applied an abuse of discretion standard of review to the reasonableness inquiry. Because Peltier failed to preserve error, the court applied a plain error standard, which required considerable deference to the district court and erected a more substantial hurdle to reversal of a sentence than the reasonableness standard. Under the plain error standard, the court stated, it could correct the sentencing determination only if: 1. there is an “unreasonable” sentence, which equates to a finding of error; 2. it is plain error; and 3. the error affects substantial rights. The court found that although Peltier’s 120-month sentence for keeping a rusty shotgun in a shed raised concerns about its reasonableness, any error did not appear so plain to us as to warrant reversal. Peltier, the court stated, argued that the district court gave insufficient weight to the applicable guidelines range and to the need to avoid unwarranted disparity in sentencing. He based this argument on the fact that his sentence was more than twice the length of the sentence advised by the guidelines and roughly 40 months longer than the mean sentence for firearms offenses nationally. But the court found that the district court did consider the guideline range but concluded that Peltier’s long history of recidivism made his situation stand out from the norm. The court noted that it had “affirmed two similar above-guideline sentences where a defendant’s criminal history score understated his true history and risk of recidivism.” Although the district court deviated strikingly far above the guidelines range, the court found that it could not conclude that any insufficient weight given to the guidelines constituted plain error. Peltier, the court stated, argued that the court gave significant weight to the improper factor of his socioeconomic status. The guidelines contain a policy statement specifically deeming a defendant’s socioeconomic status irrelevant to his sentence. By statute, Congress has also prohibited consideration of socioeconomic status. In light of the court’s strong emphasis on Peltier’s general need for treatment and its reliance on other proper factors such as criminal history and risk of recidivism, the court found that any erroneous reliance on socioeconomic status was neither plain nor so essential to the judgment as to affect Peltier’s substantial rights. OPINION:Smith, J.; Higginbotham, Smith and Owen, JJ.

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