Michael Todd Never Misses a Shot appealed his 36-month sentence upon a guilty plea to making false statements to law enforcement. The district court had departed upward from the 2 to 8-month range calculated in his presentence report because his criminal history category understated his potential for recidivism and the facts of his offense fell outside the heartland of typical false statement cases. Rejecting the defendant’s claims that the upward departure was unreasonable and the sentence an abuse of discretion, the Eighth Circuit affirmed the district court’s sentence in United States v. Michael Todd Never Misses a Shot, issued on May 21, 2013. The case demonstrates the importance of unchallenged factual information in the PSR and sets a high bar for outside-the-heartland upward departures.

The court had upwardly departed up to criminal history category VI, based on multiple prior adult convictions that had not been considered as part of Never Misses A Shot’s criminal history calculation, as well as several prior arrests involving multiple charges that did not result in convictions. The Circuit found no error where the district court had given the parties prior warning of its intent to depart upwards, the arrest record was not the sole basis for the departure, and Never Misses A Shot had not disputed the factual information in the PSR about the arrest. “Unless a defendant specifically objects, a sentencing court may accept the factual statements contained in a PSR as true.”

There was also no error in concluding the case was outside the heartland of false statement cases. This determination is made on a “case-by-case basis” and an upward departure is warranted where the defendant’s conduct “significantly differs from the norm.” Here, the district court found that “Never Misses A Shot’s conduct – accusing two innocent persons of the assault and murder of a missing person, and reporting that they burned the body and disposed of it in a river – [went] well beyond other offenses falling within § 1001, which includes offenses such as giving a law enforcement officer a false name, falsifying federal regulatory reports, or lying about marital status on a tax return.” At sentencing, the district court had therefore “rightly emphasized the seriousness of accusing an innocent person of a crime, particularly if the accusation is murder and there is a possibility of the death penalty.” It was of no moment that “the FBI never really believed him and the accused individuals were never in any real danger of being charged with a crime,” because the false accusations “risked substantial harm to both the FBI’s investigation and to the accused individuals” (emphasis added).