Submitted: September 28, 2018
from United States District Court for the Eastern District of
Missouri - St. Louis
WOLLMAN, KELLY, and ERICKSON, Circuit Judges.
ERICKSON, CIRCUIT JUDGE.
Jackson pled guilty to three charges: conspiracy to possess
with intent to distribute 100 grams or more of heroin, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and
846; and two counts of felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). The district
court applied U.S.S.G. § 4B1.1, the Career
Offender Guideline, and increased Jackson's offense level
due to two prior state court convictions for a
"controlled substance offense." The district court
specifically found that Jackson's 2015 Missouri
conviction for possession of a controlled substance (heroin)
with intent to distribute under Mo. Rev. Stat. § 195.211
(2015) was a qualifying conviction. Jackson appeals on
grounds that the guidelines range was improperly calculated
and that the sentence imposed is substantively and
procedurally unreasonable. We affirm.
court determined that Jackson had a total offense level of 31
and placed him in Criminal History Category VI, yielding a
sentencing guideline range of 188-235 months. The court
varied downward and sentenced Jackson to a term of 150 months
on the drug trafficking count and concurrent 120-month terms
on the firearms convictions. At the sentencing hearing,
Jackson did not object to the guideline calculation. Jackson
now appeals, arguing that his 2015 Missouri drug conviction
is not a qualifying controlled substance offense, and that
the sentence is substantively and procedurally unreasonable.
court reviews de novo the district court's
interpretation and application of the Guidelines. See
United States v. Mohr, 772 F.3d 1143, 1145 (8th Cir.
2014). However, issues raised for the first time on appeal
are reviewed for plain error. United States v.
Ruiz-Salazar, 785 F.3d 1270, 1272 (8th Cir. 2015) (per
curiam). Under plain error review, "the party seeking
relief must show that there was an error, the error is clear
or obvious under current law, [and] the error affected the
party's substantial rights." United States v.
Poitra, 648 F.3d 884, 887 (8th Cir. 2011) (citing
United States v. Curry, 627 F.3d 312, 314-15 (8th
Cir. 2010) (per curiam)). We will reverse "only if the
error 'seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.'"
Puckett v. United States, 556 U.S. 129, 135 (2009)
(alteration in original) (quotation marks omitted) (quoting
United States v. Olano, 507 U.S. 725, 736 (1993)).
argues that his prior Missouri conviction for possession of a
controlled substance with intent to distribute does not
qualify as a "controlled substance offense" under
the Sentencing Guidelines because the Missouri statute is
broader than the definition of "controlled substance
offense." Jackson's argument is foreclosed by
precedent. United States v. Reid, 887 F.3d 434 (8th
Cir. 2018) (rejecting the defendant's argument that Mo.
Rev. Stat. § 195.211 criminalizes conduct broader than
the Guidelines definition); United States v. Thomas,
886 F.3d 1274 (8th Cir. 2018) (finding Mo. Rev. Stat. §
195.211 required more than "mere words of an offer"
for a sale and thus qualified as a controlled substance
offense under the Guidelines definition). The district court
properly calculated Jackson's guideline range.
also contends the court erroneously believed that, in the
absence of the finding of Career Offender status, he would
have been at a total offense level of 31 rather than the
correctly calculated range of 30. In support of his argument,
Jackson points to the sentencing court's statement that
if he was not a career offender, he would have been in a
guideline sentence range of 135-168 months (the level 31
range). Since we have already concluded that Jackson is
properly a career offender, the only possible legal
significance of this claim relates to any impact this may
have had on the court's § 3553(a) analysis.
have "wide latitude to weigh the § 3553(a) factors
in each case." United States v. Farmer, 647
F.3d 1175, 1179 (8th Cir. 2011). Relying on the §
3553(a) factors, the district court was thorough and precise
in stating the reasons for its sentence. The court emphasized
that after being convicted for distribution of heroin in
2015, Jackson "went right back to distributing heroin
again." The court also noted that Jackson pled to a
"lesser offense under the statute," even though his
offense was "serious" and involved coordinating
shipments of heroin and marijuana from California and Arizona
to Missouri. Even so, the court ultimately varied downward
from the guideline range, taking into account Jackson's
positive work history and contributions to society.
"Where, as here, a district court varies below a
properly calculated Guidelines sentence, it is 'nearly
inconceivable that the court abused its discretion in not
varying downward still further.'" United States
v. Lundstrom, 880 F.3d 423, 446 (8th Cir. 2018) (quoting
United States v. Deering, 762 F.3d 783, 787 (8th
unpersuaded that the court's stray comment about what the
sentencing guideline range would have been without the career
offender finding is significant. Even if the single-level
difference were somehow significant, the 150-month sentence
was still within Jackson's claimed guideline range, and
any potential error would not affect Jackson's