United States v. John MacInnis

Filing

OPINION FILED - THE COURT: WILLIAM JAY RILEY, STEVEN M. COLLOTON and DUANE BENTON. William Jay Riley, Authoring Judge (PUBLISHED) [3672945] [09-2710]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 09-2710
___________
United States of America,
Appellee,
v.
John Kemp MacInnis,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* Northern District of Iowa.
*
*
*
___________
Submitted: April 12, 2010
Filed: June 10, 2010
___________

Before RILEY, Chief Judge, COLLOTON and BENTON, Circuit Judges.
___________
RILEY, Chief Judge.
John Kemp MacInnis appeals the sentence he received after pleading guilty to
possession of pseudoephedrine while knowing or having reasonable cause to believe
it would be used to manufacture methamphetamine, in violation of 21 U.S.C.
§ 841(c)(2). The district court1 increased MacInnis’s criminal history category from
III to IV based upon under-represented criminal history and sentenced MacInnis to
235 months imprisonment, the top of his advisory United States Sentencing

1

The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

Appellate Case: 09-2710

Page: 1

Date Filed: 06/10/2010 Entry ID: 3672945

Guidelines (Guidelines or U.S.S.G.) range. MacInnis appeals, alleging the district
court committed procedural error in calculating MacInnis’s advisory Guidelines range
and imposed a sentence greater than necessary to achieve the goals of 18 U.S.C.
§ 3553(a). We affirm.
I.

BACKGROUND
In October 2008, a grand jury returned an indictment against MacInnis,
charging him with (1) conspiring to manufacture and attempt to manufacture
methamphetamine after having been previously convicted of a felony drug offense,
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), 846, and 851; and (2) knowingly
and intentionally possessing pseudoephedrine while knowing or having reasonable
cause to believe it would be used to manufacture methamphetamine, in violation of
21 U.S.C. § 841(c)(2). MacInnis pled guilty to Count 2, and the district court
dismissed Count 1 on the government’s motion.
A presentence investigation report (PSR) prepared for MacInnis calculated an
offense level of 35 and a criminal history category III. The PSR detailed MacInnis’s
prior criminal history, including eight unscored convictions for battery, operating a
vehicle while intoxicated, public intoxication, drunkenness, indecent exposure,
violating a restraining order, and domestic abuse assault. MacInnis objected to the
PSR’s (1) drug quantity calculation and resulting base offense level,
(2) recommendation of a two-level enhancement for possession of a dangerous
weapon, (3) application of a four-level role enhancement, and (4) characterization of
factual allegations associated with MacInnis’s prior convictions. The government
gave notice it would move for an upward departure based upon under-representation
of MacInnis’s criminal history pursuant to U.S.S.G. § 4A1.3.
On June 18, 2009, the district court convened a sentencing hearing. Before the
hearing, MacInnis withdrew his objections to the PSR regarding the drug quantity and
MacInnis’s role in the offense. The parties agreed the only issues for the district court
-2-

Appellate Case: 09-2710

Page: 2

Date Filed: 06/10/2010 Entry ID: 3672945

to consider were MacInnis’s objection to a two-level firearm enhancement and the
government’s motion for an upward departure based on under-representation of
criminal history. After listening to the parties, the district court declined to impose the
two-level firearm enhancement, increased MacInnis’s criminal history category from
III to IV, and imposed a sentence of 235 months imprisonment. The district court
explained it was sentencing MacInnis at the top of his advisory Guidelines range
based, in part, on the district court’s finding that MacInnis was responsible for at least
233.04 grams of pseudoephedrine. After the district court imposed the sentence,
MacInnis’s attorney insisted there were outstanding factual disputes concerning the
drug quantity, and MacInnis had not intended to withdraw his objection to the factual
allegations underlying that finding. The district court stated, “Then we’ll start over
with the sentencing, and the government can call its witnesses. . . . [E]verything I’ve
done today is null and void.”
The sentencing hearing was continued to July 8, 2009. Eight witnesses testified
at the hearing, and the sole issue was the drug quantity attributable to MacInnis. The
district court incorporated the record from the June 18, 2009 hearing and reaffirmed
its imposition of a leadership role enhancement and its determination that MacInnis
had a base offense level of 32 and a criminal history category of IV. The district court
further found MacInnis (1) lied during his testimony, (2) had a very high risk of
recidivism, and (3) involved his entire family in methamphetamine manufacturing.
Based on these findings, the district court again sentenced MacInnis to 235 months
imprisonment. MacInnis appeals.
II.

DISCUSSION
We review the sentence imposed by a district court for an abuse of discretion.
See United States v. Lomeli, 596 F.3d 496, 503 (8th Cir. 2010). In so doing, we
“giv[e] due deference to the district court’s decision.” Id. (quoting United States v.
Braggs, 511 F.3d 808, 812 (8th Cir. 2008). We must first “ensure that the district
court committed no significant procedural error, such as failing to calculate (or
-3-

Appellate Case: 09-2710

Page: 3

Date Filed: 06/10/2010 Entry ID: 3672945

improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id.
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). If we determine the district
court did not commit procedural error, we then consider the substantive
reasonableness of the sentence. See id. As an appellate court, we may “apply a
presumption of reasonableness” to a within-Guidelines sentence. Id. (quoting Gall,
552 U.S. at 51 (internal marks omitted)).
A.
Procedure
MacInnis first contends the district court committed procedural error in
increasing his criminal history category from III to IV based on under-represented
criminal history. MacInnis claims the district court improperly relied on the contested
facts underlying MacInnis’s prior convictions and made findings based on “generic
characterizations” of the prior convictions rather than an individualized assessment.
Because MacInnis failed to preserve this claim in the district court, we review
for plain error. See United States v. Claybourne, 415 F.3d 790, 799 (8th Cir. 2005).
First, although MacInnis objected to the PSR’s recitation of the factual allegations
associated with MacInnis’s prior offenses, MacInnis failed to make sufficiently
specific objections to put the government on notice of what the government needed
to prove at sentencing. See United States v. Davis, 583 F.3d 1081, 1095-96 (8th Cir.
2009) (holding a “vague, blanket objection” to a PSR is not sufficient to put the
government on notice); United States v. Razo-Guerra, 534 F.3d 970, 976 (8th Cir.
2008) (“[W]e require that objections to the PSR be made with specificity and clarity
before a district court is precluded from relying on the factual statements contained
in the PSR.” (internal marks omitted)). Second, even if MacInnis had made his
objection to the factual allegations with sufficient specificity, MacInnis conceded this
objection at the June 18, 2009 sentencing hearing when he agreed “the only issue [he
wanted] to pursue . . . [wa]s whether the Court should increase [his] advisory
-4-

Appellate Case: 09-2710

Page: 4

Date Filed: 06/10/2010 Entry ID: 3672945

guideline computation by two levels for possession of a firearm,” as well as opposing
the government’s motion for an upward departure based on under-represented
criminal history. Even when MacInnis reinstated his objection to the drug quantity
at the end of that first sentencing hearing, he made no objection to the district court’s
consideration of the prior convictions. At the second sentencing hearing on July 8,
2009, MacInnis again failed to object to the district court’s statement that, “The sole
remaining issue [wa]s drug quantity.”
“Under plain error review, the defendant must show: (1) an error; (2) that is
plain; and (3) that affects substantial rights. If a defendant makes that showing, an
appellate court may exercise its discretion to correct a forfeited error only if it
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
Lomeli, 596 F.3d at 504 (quoting United States v. Phelps, 536 F.3d 862, 865 (8th Cir.
2008)) (internal marks and quotations omitted).
U.S.S.G. § 4A1.3(a)(1) provides, “If reliable information indicates that the
defendant’s criminal history category substantially under-represents the seriousness
of the defendant’s criminal history or the likelihood that the defendant will commit
other crimes, an upward departure may be warranted.” MacInnis does not contest he
has eight unscored prior convictions. In fact, during his allocution, MacInnis told the
district court, “I’m sorry I have to be here today. Everything you heard is true. I was
a bad person. I did hurt my wife. I did drive drunk. And those are terrible crimes.”
Thus, MacInnis’s suggestion that the district court improperly characterized his prior
convictions fails. Given the number and nature of MacInnis’s unscored convictions,
we find no error, plain or otherwise, in the district court’s imposition of an upward
departure.
Next, MacInnis claims the district court made clearly erroneous factual findings
in deciding to sentence MacInnis at the top of his advisory Guidelines range, including
(1) MacInnis’s likelihood of recidivism, (2) whether MacInnis involved his family in
-5-

Appellate Case: 09-2710

Page: 5

Date Filed: 06/10/2010 Entry ID: 3672945

the methamphetamine enterprise, and (3) whether MacInnis made methamphetamine
to support himself. Having reviewed the record, we conclude the district court’s
factual findings were not clearly erroneous.
Finally, MacInnis insists the district court took contrary positions at the two
sentencing hearings regarding the importance of the drug quantity in sentencing
MacInnis at the top of his advisory Guidelines range. MacInnis claims, at the first
sentencing hearing, the district court declared the large quantity of pseudoephedrine
played a substantial role in the court’s decision to sentence MacInnis at the top of his
advisory Guidelines range, but at the second hearing, the district court “backed off”
her original statement regarding the importance of the drug quantity. As MacInnis
acknowledges, a district court has discretion to weigh the evidence. At the conclusion
of the second sentencing hearing, the district court stated, “There’s more than enough
to justify a sentence at the top of the range, especially with the lies I heard today.” We
find no error in the district court’s consideration of the evidence or explanation for the
chosen sentence.
B.
Substantive Reasonableness
Having found no procedural error, we next consider the substantive
reasonableness of MacInnis’s sentence. MacInnis asserts the district court
(1) imposed a sentence greater than necessary to achieve the goals of 18 U.S.C.
§ 3553(a), (2) failed to give proper weight to certain sentencing factors, and
(3) created an unwarranted sentencing disparity between MacInnis and similar
defendants. “[G]iv[ing] due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify” MacInnis’s sentence, Gall, 552 U.S. at 51, our
careful review of the record and MacInnis’s sentence reveals no abuse of the district
court’s considerable sentencing discretion and no basis for concluding MacInnis’s
within Guidelines sentence is substantively unreasonable.

-6-

Appellate Case: 09-2710

Page: 6

Date Filed: 06/10/2010 Entry ID: 3672945

III.

CONCLUSION
We affirm MacInnis’s sentence and the judgment of the district court.
______________________________

-7-

Appellate Case: 09-2710

Page: 7

Date Filed: 06/10/2010 Entry ID: 3672945