Submitted: April 19, 2019
from United States District Court for the District of South
Dakota - Southern Division
SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
Lamar Berry, Sr., appeals the sentence the district
court imposed after he pled guilty to one count
of possession with intent to distribute a controlled
substance, in violation of 21 U.S.C. § 841(a)(1). He
challenges two aspects of his U.S. Sentencing Guidelines
("Guidelines") range and the substantive
reasonableness of his sentence. We affirm.
sentencing, the district court made two Guidelines
calculations that are relevant to Berry's appeal. First,
the district court found under U.S.S.G. § 1B1.3 that
Berry's uncharged drug activity in 2015 was part of a
common scheme or plan with his charged drug activity in 2017
and part of the same course of conduct. Berry objected on
several grounds, including that he was in prison for over a
year between the two time periods. The district court
overruled his objection. Second, the district court found
under U.S.S.G. § 2D1.1(b)(15)(E) (2016) that the 2017
drug activity was "part of a pattern of criminal conduct
engaged in as a livelihood." Berry had objected that
evidence of the money he wired to pay for drugs only
established his debts, not what he had received as
"income," and could not satisfy the criteria
necessary for the enhancement to apply. The district court
overruled the objection, noting there was also evidence that
Berry had large amounts of cash.
on these rulings, the district court calculated Berry's
Guidelines range as 360 to 480 months of imprisonment. The
district court then varied downward to a sentence of 300
months of imprisonment.
review application of the Guidelines to the facts de novo.
United States v. Waln, 916 F.3d 1113, 1115 (8th Cir.
2019). We review factual findings at sentencing for clear
appeal, Berry first challenges the relevant conduct
determination under U.S.S.G. § 1B1.3 by arguing that his
2015 drug activity was too remote in time from his 2017
charge. Berry asks us to follow the Seventh Circuit's
position on relevant conduct stated in United States v.
Purham, 754 F.3d 411, 414 (7th Cir. 2014). In
Purham, the Seventh Circuit made separate
determinations regarding the "course of conduct"
and the "common scheme or plan" components of
relevant conduct. See id. It held that evidence of
merely transporting the same drug between the same cities on
two different occasions was not sufficient to establish the
same course of conduct when the relevant conduct was
separated by more than a year. See id. It also held
that such conduct does not constitute a common scheme or plan
where it lacks "at least one common factor, such as
'common victims, common accomplices, common purpose, or
similar modus operandi.'" Id. (quoting
U.S.S.G § 1B1.3(a)(2) cmt. n.5(B)(i)).
we followed the Seventh Circuit and imposed a remoteness test
to determine whether the drug activity was part of the same
course of conduct, the test would not help Berry because the
Seventh Circuit's test for a finding of a common scheme
or plan matches the evidence against Berry. In particular,
evidence at sentencing shows common accomplices (two cousins)
assisted Berry in distributing methamphetamine in both 2015
and 2017. Berry protests that relatives should not be
considered common accomplices, but he cites no authority for
that point, and we see no reason to create a relatives
exception to the test for common accomplices. Thus, the
district court did not clearly err by finding that the 2015
drug activity was part of the same course of conduct as the
2017 charged conduct.
Berry challenges the criminal livelihood enhancement by
arguing that the $22, 000 he wired to California for drugs
was not income. The Guidelines recommend a two-level
enhancement if "the defendant committed the offense as
part of a pattern of criminal conduct engaged in as a
livelihood." U.S.S.G. § 2D1.1(b)(15)(E) (2016). The
term "engaged in as a livelihood" is defined as
follows: "(A) the defendant derived income from the
pattern of criminal conduct that in any twelve-month period
exceeded 2, 000 times the then existing hourly minimum wage
under federal law; and (B) the totality of circumstances
shows that such criminal conduct was the defendant's
primary occupation in that twelve-month period."
Id. § 4B1.3 cmt. n.2; see id. §
2D1.1 cmt. n.20(C). The federal minimum wage was $7.25 during
the relevant time period. 29 U.S.C. § 206(a).
Accordingly, the government needed to show that Berry derived
more than $14, 500 in income from his drug activity to prove
the enhancement applied.
we have not previously adopted a definition for income, we
believe the term refers to gross income, not
net income. See United States v. Gordon,
852 F.3d 126, 131 (1st Cir. 2017). First, the definition is
linked to the minimum wage, see U.S.S.G. §
4B1.3 cmt. n.2, which is a gross income figure itself.
Second, we think that a substantial cash flow from criminal
activity is sufficient evidence to satisfy the
"income" requirement. We see no value in rewarding
a defendant who may have poor profit margins on his criminal
activity. The enhancement is for engaging in criminal conduct
as a livelihood, not for becoming wealthy from criminal
that definition, we see no clear error in the district
court's decision below. The district court found that
Berry wired $22, 000 for drugs in a single year, that he had
no significant legitimate employment, and that evidence
suggested he had other large amounts of cash on hand. Because
the record indicates that Berry derived the vast majority of
these funds from his drug sales, the district court's
conclusion that these funds satisfied the income requirement
could not be clearly erroneous under a gross income standard.
Berry does not challenge that drug activity was his primary
occupation. Accordingly, we hold the district court did not
err in applying the criminal livelihood enhancement.
Berry challenges the substantive reasonableness of his
sentence by arguing it failed to account for his "long
history of drug addiction, his lack of prior drug-related
convictions, and the fact that he has never received a
sentence longer than 6 months." We review substantive
reasonableness for abuse of discretion. See United States
v. Waters, 883 F.3d 1022, 1028 (8th Cir. 2018). A
sentencing court abuses its discretion "when it . . .
fails to consider a relevant factor that should have received
significant weight . . . [or] gives significant weight to an
improper or irrelevant factor." United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)
(quoting United States v. Kane, 552 F.3d 748, 752
(8th Cir. 2009), vacated, 562 U.S. 1267 (2011)). At
sentencing, the district court acknowledged "the impact
[methamphetamine] . . . had on [his] life" and that
Berry's prior convictions were "for things that are
not nearly as serious as this ...