No. 21-1578 ___________________________

United States of America

Plaintiff - Appellee

v.

Malik Ross

Defendant - Appellant ____________

Appeal from United States District Court for the Eastern District of Missouri - St. Louis ____________

Submitted: January 10, 2022 Filed: April 4, 2022 ____________ Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges. ____________ GRUENDER, Circuit Judge.

After Malik Ross pleaded guilty to embezzlement of bank funds and conspiracy to embezzle bank funds, the district court 1 sentenced him to 120 months’ imprisonment, an upward variance of approximately nine years from Ross’s

1 The Honorable Rodney W. Sippel, United States District Judge for the Eastern District of Missouri. advisory sentencing guidelines range. Ross appeals, arguing that the district court procedurally erred in calculating his sentence and that his sentence is substantively unreasonable.

I.

Malik Ross pleaded guilty to embezzlement and conspiracy to embezzle. See 18 U.S.C. § 656. Ross’s advisory sentencing guidelines range was 8 to 14 months’ imprisonment. The Government requested an upward variance based on a shooting involving Ross. At the sentencing hearing, two St. Louis police officers testified that on August 12, 2019, the day before Ross committed the embezzlement, Ross became irritated while in a convenience store. They also testified that while Ross was leaving, he encountered two individuals and fired in their direction, killing a seven-year-old child. Ross was not charged with any crime related to the shooting. After the shooting, Ross and his aunt conspired to embezzle money from his employer, an armored-truck company, so that he could leave town. Ross threw a bag containing $50,000 out of the truck onto the street, which his aunt retrieved.

Before the sentencing hearing, Ross provided information to the district court about his intellectual disability, including his low IQ and receipt of social-security disability benefits. At the sentencing hearing, the district court found by a preponderance of the evidence that Ross acted recklessly in firing his gun fourteen times and attempted to evade responsibility by leaving town. The district court varied upward from the guidelines range for Ross’s embezzlement convictions and chose a sentence between the guidelines ranges for involuntary manslaughter and second-degree murder that “reflect[ed] the seriousness of the [shooting] offense, the reckless disregard for the community in discharging 14 rounds into the neighborhood, resulting in a death [of a child] and serious injury to another person, the dangers to the community, and, to some extent, to deter similar conduct.” The district court also said it considered Ross’s intellectual disability in making its determination. Ross was sentenced to 120 months’ imprisonment on each count to be served concurrently. Ross appeals, arguing that the district court procedurally

-2- erred by failing to explain adequately its consideration of his intellectual disability. Ross also argues that his sentence is substantively unreasonable.

II.

In reviewing a sentence, we first determine whether the district court committed a significant procedural error. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). Then “we review for substantive reasonableness.” United States v. Godfrey, 863 F.3d 1088, 1094 (8th Ci