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United States v. Small

April 2, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
SURESH HARLAN SMALL, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Minnesota.

The opinion of the court was delivered by: Benton, Circuit Judge.

Submitted: February 8, 2010

Before LOKEN, Chief Judge*fn1 , GRUENDER and BENTON, Circuit Judges.

Suresh Harlan Small challenges his 240-month sentence for armed bank robbery. He argues that the district court*fn2 erred in calculating his guidelines range, applying an obstruction-of-justice enhancement, and not granting a downward departure. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court affirms.

I.

On March 28, 2008, Small robbed a bank in St. Anthony, Minnesota. As he fled the scene, a device on a money bag tracked him. Small then led police on a high-speed chase through morning rush-hour traffic, reaching speeds over 100 miles per hour. He eventually exited his vehicle pointing a pellet gun at police. Officers shot Small, wounding him in the leg.

At the hospital, Small confessed to the robbery and four previous bank robberies, leading to a five-count indictment for bank robbery. He pled guilty to all counts. The parties agreed he was a career offender. Applying an obstruction-of-justice enhancement for flight and brandishing a weapon, the district court calculated a guidelines range of 262 to 327 months. The court sentenced Small to 240 months' imprisonment.

II.

Small contends that the court improperly increased his criminal history category. This court reviews a district court's guidelines calculations de novo, and reviews factual determinations for clear error. United States v. Yah, 500 F.3d 698, 702 (8th Cir. 2007).

The career-offender provision requires that the total offense level be the greater of the offense level in § 4B1.1(b), or the offense level otherwise applicable under Chapters Two and Three of the guidelines based on the underlying conduct. U.S.S.G. § 4B1.1(b). The provision also places a career offender's criminal history "in every case" at category VI. Id.

Small's offense level under § 4B1.1(b) was 31. His offense level based on the underlying conduct was 34. The district court adopted the greater offense level of 34. It then assigned Small a category VI criminal history, yielding a guidelines range of 262 to 327 months. See id.

Small asserts that his sentence should have been calculated entirely under the career-offender provision, or solely based on his underlying conduct. His initial criminal history without applying the career-offender provision was category V. A calculation exclusively under the career-offender provision makes the offense level 31 and the criminal history VI, resulting in a range of 188 to 235 months. A calculation based solely on underlying conduct--without a career-offender designation, offense level 34, criminal history V--produces a range of 235 to 293 months. Small concludes that the district court's range of 262 to 327 months improperly aggregated the offense level for the underlying conduct and the criminal history category under § 4B1.1(b), resulting in a higher sentence and denying him fundamental fairness. He claims that the career-offender provision must be applied in its entirety, or not at all.

The district court, however, properly followed § 4B1.1(b) by setting Small's criminal history at category VI and adopting the greater of the two offense levels. See United States v. Shepard, 462 F.3d 847, 872 (8th Cir. 2006) (a sentencing court must employ category VI in every career-offender case); United States v. Zimmer, 299 F.3d ...


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