United States v. Werlein, 664 F.3d 1143 (8th Cir. 2011). · Go Syfert
United States v. Werlein, 664 F.3d 1143 (8th Cir. 2011). Cases Citing This Book View Copy Cite
43 citation events (43 in the last 25 years) across 2 distinct courts.
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At page 1146 Reviewing substantive reasonableness of sentences under § 355315 citing cases“a presumption of reasonableness will be applied to sentences within the guideline range, even if the sentence is derived from a guideline that was 'the product of congressional direction rather than an empirical approach.”2 citing courts quote it
  • United States v. Jimmy Hudson, Jr., 146 F.4th 647 (8th Cir. 2025).published
    “Where, as here, an appellant does not argue that the district court committed a procedural error,” this Court proceeds “directly to review the substantive reasonableness of his sentence.” United States v. Werlein, 664 F.3d 1143, 1146 (8th…
  • United States v. LeBray Heart, No. 23-1102 (8th Cir. Nov. 3, 2023).unpublished
    United States v. Werlein, 664 F.3d 1143, 1146, 1023-24 (8th Cir. 2011).
  • United States v. Robert Bennett, No. 22-1314 (8th Cir. Nov. 7, 2022).unpublished
    This court reviews “the substantive reasonableness of a sentence under a deferential abuse of discretion standard.” United States v. Werlein, 664 F.3d 1143, 1146 (8th Cir. 2011), citing Gall v. United States, 552 U.S. 38, 51 (2007).
  • United States v. Reymundo Sauceda, 960 F.3d 495 (8th Cir. 2020).published
    “A district court abuses its discretion ‘when it fails to consider a relevant and significant factor, gives significant weight to an irrelevant or improper factor, or considers the appropriate factors but commits clear error of judgment in…
  • United States v. Venito Johnson, No. 17-2942 (8th Cir. Dec. 14, 2018).unpublished 2 cites
    Where, as here, an appellant does not argue that the district court committed a procedural error, we “move directly to review the substantive reasonableness of his sentence.” United States v. Werlein, 664 F.3d 1143, 1146 (8th Cir. 2011).
  • United States v. Alexisus Mosby, 664 F. App'x 600 (8th Cir. 2016).unpublished 2 cites
    “Where, as here, [Mosby] does not argue that the district court committed a procedural error, we ‘bypass the first part of our review and move directly to review the substantive reasonableness of his sentence.’” United States v. Werlein, 6…
  • United States v. Darrell Scott, 831 F.3d 1027 (8th Cir. 2016).published
    United States v. Werlein, 664 F.3d 1143, 1146 (8th Cir. 2011).
  • United States v. Michael Romeo Geraci, 557 F. App'x 611 (8th Cir. 2014).unpublished
    Discussion Geraci argues that his 120-month sentence is substantively unreasonable because the sentence “gave too much weight to the extremely high advisory guidelines [that] applied to his case, and insufficient weight to the many mitigat…
  • United States v. Raymond Standafer, 703 F.3d 424 (8th Cir. 2013).published 2 cites
    We apply a presumption of reasonableness to sentences within the Guidelines range, “even if the sentence is derived from a guideline that was ‘the product of congressional direction rather than [an] empirical approach.’” United States v. W…
  • United States v. Todd Richard Franik, 687 F.3d 988 (8th Cir. 2012).published
    “Where, as here, [Franik] does not argue that the district court committed a procedural error, we bypass the first part of our review and move directly to review the substantive reasonableness of his sentence.” United States v. Werlein, 66…
Show 5 more citing cases
  • United States v. Black, 670 F.3d 877 (8th Cir. 2012).published 2 cites
    United States v. Werlein, 664 F.3d 1143, 1146 (8th Cir.2011) (per curiam) (citing Gall, 552 U.S. at 51 , 128 S.Ct. 586 ).
  • United States v. Olson, 667 F.3d 958 (8th Cir. 2012).published 4 cites
    The dissent asserts that this opinion is inconsistent with our decisions in Blackmon , and United States v. Werlein, 664 F.3d 1143, 1146-47 (8th Cir.2011).
  • United States v. Mark Althage, 484 F. App'x 76 (8th Cir. 2012).unpublished
    See United States v. Werlein, 664 F.3d 1143, 1146 (8th Cir.2011) (per curiam); United States v. Kiderlen, 569 F.3d 358, 369 (8th Cir.2009).
  • United States v. Greg Wallin, No. 25-2331 (8th Cir. Mar. 11, 2026).unpublished
    See also United States v. Werlein, 664 F.3d 1143, 1146 (8th Cir. 2011) (per curiam) (within- guidelines sentence is accorded presumption of reasonableness on appeal).
  • United States v. Austin Alexander, 533 F. App'x 700 (8th Cir. 2013).unpublished
    See Gall v. United States, 552 U.S. 38, 51 , 128 S.Ct. 586 , 169 L.Ed.2d 445 (2007) (describing appellate review of sentences under the deferential abuse-of-discretion standard and noting that if a sentence is within the Guidelines range,…
At page 1147 Distinguishing rehabilitation discussion from sentence lengthening12 citing cases“we have stated that no plain tapia error occurs where a district court 'never expresses an intention to lengthen a defendant's sentence for rehabilitative purposes.”1 citing court quotes it
  • United States v. Rodney Smith, 146 F.4th 615 (8th Cir. 2025).published 3 cites
    See Smith, 29 F.4th at 398–99 (finding no Tapia violation when the district court made clear it was imposing the sentence -4- notwithstanding the treatment options and because the defendant posed a danger to the community); United States v…
  • United States v. John Willis Netherton, No. 21-2138 (8th Cir. Aug. 15, 2022).unpublished
    The district court1 did say that Netherton needed quite a bit of “care[,] treatment[,] and training,” but it “never expresse[d] an intention to lengthen [his] sentence for rehabilitative purposes.” United States v. Werlein, 664 F.3d 1143,…
  • United States v. Patrick James Cavanaugh, No. 21-1272 (8th Cir. Mar. 10, 2022).unpublished
    Although the district court discussed placing him in a drug-treatment program in prison, it “never expresse[d] an intention to lengthen [his] sentence for rehabilitative purposes.” United States v. Werlein, 664 F.3d 1143, 1147 (8th Cir. 20…
  • United States v. David Clark, 998 F.3d 363 (8th Cir. 2021).published
    However, “[w]e have stated that no plain Tapia error occurs where a district court ‘never expresse[s] an intention to lengthen [a defendant’s] sentence for rehabilitative purposes.’” United States v. Werlein¸ 664 F.3d 1143, 1147 (8th Cir.…
  • United States v. Mark Banes, 691 F. App'x 300 (8th Cir. 2017).unpublished
    See United States v. Holdsworth, 830 F.3d 779, 784-85 (8th Cir. 2016) (reviewing for plain error, considering the context in which the disputed statements were made, and concluding that any comments about treatment did not indicate that th…
  • United States v. Christopher Holdsworth, 830 F.3d 779 (8th Cir. 2016).published
    Not only does Holdsworth concede that the district court never referenced any specific BOP treatment program, but he also concedes that the district court “discussed other factors such as the need for deterrence and protection of the publi…
  • United States v. Taylor, 679 F.3d 1005 (8th Cir. 2012).published
    See United States v. Blackmon, 662 F.3d 981, 987 (8th Cir.2011); United States v. Werlein, 664 F.3d 1143, 1147 (8th Cir.2011).
  • United States v. Olson, 667 F.3d 958 (8th Cir. 2012).published 4 cites
    The dissent asserts that this opinion is inconsistent with our decisions in Blackmon , and United States v. Werlein, 664 F.3d 1143, 1146-47 (8th Cir.2011).
  • United States v. Bullock, No. 25-6003 (10th Cir. Dec. 29, 2025).unpublished
    (considering the context of the district court’s statements about treatment)
  • United States v. Gary Smith, 29 F.4th 397 (8th Cir. 2022).published
    (no plain Tapia error occurs where a district court never expresses an intention to lengthen a defendant’s sentence for rehabilitative purposes” (cleaned up))
Show 2 more citing cases
  • United States v. Pickar, 666 F.3d 1167 (8th Cir. 2012).published
    Id. at 987 ; accord United States v. Werlein, 664 F.3d 1143, 1147 (8th Cir.2011); United States v. Martin, 445 Fed.Appx. 692 , 694-95 (4th Cir.2011) (unpublished).
  • United States v. Gary Rickert, Sr., 685 F.3d 760 (8th Cir. 2012).published
    A court also “commits no error by discussing the opportunities for rehabilitation within prison.” Id.; see also United States v. Werlein, 664 F.3d 1143, 1147 (8th Cir.2011) (per curiam); United States v. Blackmon, 662 F.3d 981, 987 (8th Ci…
At page 1145 Reviewing appellate review of sentencing under abuse-of-discretion2 citing cases1 listed here
  • United States v. Cody Malone, 530 F. App'x 603 (8th Cir. 2013).unpublished
    See Gall v. United States, 552 U.S. 38, 51 , 128 S.Ct. 586 , 169 L.Ed.2d 445 (2007) (describing appellate review of sentences under the deferential abuse-of-discretion standard and noting that if a sentence is within the Guidelines range,…
Other citing cases1 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Shane Allen WERLEIN, Appellant
11-1404.
Court of Appeals for the Eighth Circuit.
Dec 15, 2011.
Published opinion
664 F.3d 1143
2011 U.S. App. LEXIS 24845
2011 WL 6221798
Andrea K. George, AFPD, Minneapolis, MN, for appellant., LeeAnn K. Bell, AUSA, Minneapolis, MN, for appellee.
Wollman, Murphy, and Benton, Circuit Judges.
Cited by 30 opinions  |  Published
PER CURIAM.

Shane Allen Werlein pled guilty to production of child pornography, in violation of 18 U.S.C. §§ 2251(a) and 2251(e). The district court [1] imposed the maximum statutory penalty of 30 years in prison. Werlein appeals his sentence arguing that it was substantively unreasonable and that the district court violated Tapia v. United States, — U.S.-, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011). We affirm.

Werlein was charged with two counts of production of child pornography and one count of possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2), 2251(a), and 2251(e). He pled guilty to one count of producing child pornography, admitting that he had used online profiles to befriend at least two adolescent girls, had engaged in sexual conduct with them, and had downloaded onto his computer sexually explicit pictures of them. The presentence investigation report (PSR) calculated a total offense level under the guidelines of 46 and noted that such a level generally leads to a guideline range of life imprisonment. The PSR explained, however, that because 18 U.S.C. § 2251(e) imposes a mandatory maximum term of imprisonment of 30 years for Werlein’s crime, his guideline range would be 360 months. U.S.S.G. § 5G1.1.

At the sentencing hearing, Werlein’s attorney discussed the defendant’s experience of being bullied as a child and requested a sentence of 198 months. The government requested a 360 month sentence, stating that Werlein “will continue to victimize young women as long as he is able.” One of Werlein’s victims explained to the court how the defendant had abused her and how his abuse had affected her life. She stated that she “couldn’t sleep at night knowing there are other innocent girls younger than [her], getting hurt by this sickened man.”

The district court first acknowledged that Werlein had been bullied as a child and discussed the need for therapeutic intervention for people who have experienced bullying. The court stated that Werlein posed a high risk of recidivism and that his sentence must “promote respect for the law” and “protect the public safety.” While the district court mentioned therapeutic intervention and treatment, its statements were made in the context of explaining the risk that Werlein posed to the general public. After citing[*1146] the factors set out in 18 U.S.C. § 3553(a), the district court sentenced Werlein to 360 months and stated that it thought this was “a 30-year case” because of the egregiousness of Werlein’s conduct. Werlein’s lawyer then requested that the court recommend a facility with a treatment program, which the court agreed to do. Werlein appeals.

In reviewing the sentence, we first “ensure that the district court committed no significant procedural error.” United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). If there has been no procedural error, we review the substantive reasonableness of a sentence under a deferential abuse of discretion standard. Gall, 552 U.S. at 51, 128 S.Ct. 586. A district court abuses its discretion “when it fails to consider a relevant and significant factor, gives significant weight to an irrelevant or improper factor, or considers the appropriate factors but commits clear error of judgment in weighing those factors.” United States v. Miner, 544 F.3d 930, 932 (8th Cir.2008). Where, as here, an appellant does not argue that the district court committed a procedural error, we “bypass the first part of our review and move directly to review the substantive reasonableness of his sentence.” United States v. O’Connor, 567 F.3d 395, 397 (8th Cir.2009).

Werlein first contends that district court should have given little deference to the child pornography guidelines because they were mandated by Congress and therefore do not represent an exercise of the sentencing commission’s “characteristic institutional role.” Kimbrough v. United States, 552 U.S. 85, 109, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). He relies on decisions by district courts that have rejected guidelines related to child pornography offenses based on policy disagreements with them. See United States v. Beiermann, 599 F.Supp.2d 1087, 1106 (N.D.Iowa 2009). A presumption of reasonableness will be applied to sentences within the guideline range, even if the sentence is derived from a guideline that was “the product of congressional direction rather than [an] empirical approach.” United States v. Kiderlen, 569 F.3d 358, 369 (8th Cir.2009).

In this case the record does not indicate that the district court heavily relied on the guideline range of 360 months in imposing Werlein’s sentence. See United States v. Ultsch, 578 F.3d 827, 830 (8th Cir.2009). The district court carefully reviewed the § 3553(a) factors and determined that “anything less than 360 months would not promote respect for the law, [and] protect the public safety.” We presume that the sentence is reasonable because it corresponded to the guideline range provided in the PSR and reflected the district court’s agreement with Congress as to the serious nature of Werlein’s crime. Kiderlen, 569 F.3d at 369. We therefore conclude that the district court did not abuse its discretion in sentencing Werlein to his guideline range of 360 months.

Werlein next argues the district court gave undue weight to the victim’s statement at his sentencing hearing, relied on uncharged conduct that was referenced in the PSR, and overstated the severity of Werlein’s crime in crafting his sentence. We disagree. The court was well within its discretion to consider the victim’s statement during the sentencing hearing. See United States v. Ortiz, 636 F.3d 389, 393-94 (8th Cir.2011). The inclusion of uncharged conduct in the PSR was also proper as a sentencing court may review such relevant evidence in considering a sentence. United States v. Whiting, 522 F.3d 845, 850 (8th Cir.2008). Furthermore, the district court properly determined that[*1147] Werlein’s crime was particularly severe and that he posed a high risk of recidivism. The district court therefore did not abuse its discretion in sentencing him to 360 months to “promote respect for the law” and “protect the public safety.”

Werlein also argues that the district court improperly considered his need for rehabilitation in deciding on his sentence. The Supreme Court has stated that a court “may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” Tapia, 131 S.Ct. at 2393. The Supreme Court noted, however, that during sentencing a district court “commits no error by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs.” Id. at 2392. We have stated that no plain Tapia error occurs where a district court “never expresse[s] an intention to lengthen [a defendant’s] sentence for rehabilitative purposes.” United States v. Blackmon, 662 F.3d 981, 987 (8th Cir.2011).

The record in this case reflects that the district court did not impose or lengthen Werlein’s sentence to promote his rehabilitation. The court focused on the high likelihood that Werlein would reoffend and the need to protect the public from him. While the district court mentioned therapeutic intervention and treatment at the sentencing hearing, these references were made in the context of explaining why Werlein posed a risk of recidivism, responding to a request by Werlein’s attorney that he be placed in a facility with treatment, and mentioning that Werlein might benefit from professional assistance. See United States v. Orrellana-Rosales, 446 Fed.Appx. 240, 242-43, No. 11-1395, 2011 WL 5420830, at *2 (11th Cir. Nov. 9, 2011) (no Tapia error where a reference to rehabilitation amounted to an “observation about the effect of the sentence” instead of a basis to determine “the duration of imprisonment”). Like in Blackmon, there is no indication in this case that the district court lengthened Werlein’s sentence so that he could complete a certain treatment program while in prison. We therefore conclude that the district court did not improperly consider Werlein’s need for rehabilitation in sentencing him to 360 months.

The judgment of the district court is affirmed.

1

. The Honorable Donovan W. Frank, United States District Judge for the District of Minnesota.