United States v. Willie Harvey, III

Filing

PER CURIAM OPINION FILED - THE COURT: Raymond W. Gruender, Michael J. Melloy and Duane Benton (UNPUBLISHED) [4285957] [14-3050]

United States Court of Appeals
For the Eighth Circuit
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No. 14-3050
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Willie Harvey III
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: June 8, 2015
Filed: June 17, 2015
[Unpublished]
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Before GRUENDER, MELLOY, and BENTON, Circuit Judges.
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PER CURIAM.
Willie Harvey III pleaded guilty to possession with intent to distribute
methamphetamine and cocaine, in violation of 21 U.S.C. § 841(a)(1), and possession

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of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). The district court1
sentenced him to 92 months’ imprisonment. Harvey now appeals. We affirm.
In July 2013, law enforcement learned that Harvey was selling
methamphetamine, cocaine base, and marijuana. A confidential informant said that
he regularly drove a friend to Harvey’s home to buy these drugs and that he had seen
Harvey with a pistol and methamphetamine. After law enforcement completed a
controlled drug purchase from Harvey, they received a warrant to search Harvey’s
home. During the search, officers found a loaded pistol; $3,200 in cash; drugdistribution paraphernalia; and several grams of methamphetamine, cocaine base,
cocaine, and marijuana. Based on this evidence, a grand jury indicted Harvey for
possession with intent to distribute narcotics and possession of a firearm by a felon.
Harvey ultimately pleaded guilty pursuant to a written agreement. At
sentencing, the district court adopted the base-offense levels proposed by the parties.
Harvey’s offense record led the court to determine that Harvey had fifteen criminalhistory points, which placed him in Category VI. The court then sentenced Harvey
to 92 months’ imprisonment, a sentence at the bottom of his advisory guidelines
range of 92 to 115 months.
Harvey raises two arguments on appeal. First, he contends that the district
court erred in calculating his criminal-history score. Second, he argues that his
criminal-history category overstated his criminal past and thus resulted in a
substantively unreasonable sentence. In reviewing Harvey’s sentence, we “first
ensure that the district court committed no significant procedural error.” United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (quoting Gall v.
United States, 552 U.S. 38, 51 (2007)). We “then consider the substantive

1

The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
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reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id.
(quoting Gall, 552 U.S. at 51).
Because Harvey did not object to his criminal-history score before the district
court, we review this issue for plain error. See United States v. McKay, 431 F.3d
1085, 1095 (8th Cir. 2005). Harvey points to several alleged errors in the criminalhistory calculation. First, he argues that the district court erred by assessing points
for two older sentences, one resulting from a 1994 drug offense and another from a
2002 assault, because they predated the relevant guidelines’ time periods of fifteen
and ten years, respectively. See USSG § 4A1.2(e). In both instances, however, a
court revoked Harvey’s release after he violated probation. A court then re-imposed
the prison sentences for each offense, and Harvey was incarcerated during the
relevant guidelines’ time periods. The guidelines approve of counting such reimposed sentences following revocation, and the court thus properly calculated these
criminal-history points. See USSG § 4A1.2(k) (noting that revocation “affects[s] the
time period under which certain sentences are counted as provided” in
USSG § 4A1.2(e)).
Harvey next argues that the district court erred when it assigned additional
criminal-history points for his sentence stemming from a conviction for a 2004 drug
offense. After Harvey was convicted for this offense, a state court revoked his
probation for a 2002 assault and then imposed a prison term that Harvey contends is
a “single sentence” for both the assault revocation and the 2004 drug offense. See
USSG § 4A1.2(a)(1) (discussing separate and single sentences). Harvey argues that
the district court erred by awarding additional points for the drug-conviction sentence
beyond those awarded for the revocation. This challenge fails because even though
a court imposed concurrent sentences, the guidelines state that “prior sentences
always are counted separately if the sentences were imposed for offenses that were
separated by an intervening arrest (i.e. the defendant is arrested for the first offense
prior to committing the second offense).” USSG § 4A1.2(a)(2) (emphasis added).
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Here, an intervening arrest separated the offenses: Police arrested Harvey for the
2002 assault long before he committed the relevant drug offense in late 2004.
Accordingly, we see no error.
Third, Harvey contends that the district court erred in assessing points for his
unlicensed-driving sentences because they resulted from ordinance violations.
Though sentences for misdemeanor and petty offenses do not always receive points
under the guidelines, a district court should award points when the sentence is “a term
of probation of more than one year.” USSG § 4A1.2(c)(1). And here, Harvey was
sentenced to two years’ probation for each relevant unlicensed-driving offense.
Finally, Harvey argues that the district court erred by assigning points for two
probation sentences because in each instance, a sentencing court gave Harvey
probation only as a contingent sentence if he failed to pay an assessed fine. We need
not reach the merits of this argument because any resulting error is harmless. See
United States v. Gutierrez, 437 F.3d 733, 737 (8th Cir. 2006). Even without these
points, Harvey would fall into criminal-history Category VI, and his sentencing range
would remain the same. We therefore find no reversible procedural error.
In addition to these guidelines’ calculation arguments, Harvey contends that
the district court imposed a substantively unreasonable sentence because his criminalhistory category overstated his criminal past. The district court denied Harvey’s
request for a downward departure, see USSG § 4A1.3(b), and variance, see 18 U.S.C.
§ 3553(a), on this basis. We lack authority to review the district court’s denial of a
downward departure because Harvey does not argue that the court had an
unconstitutional motive or that the court failed to recognize its authority to depart
downward. See United States v. Woods, 596 F.3d 445, 449 (8th Cir. 2010). And we
reject his argument that the district court abused its discretion by failing to vary
downward. A court abuses its discretion at sentencing when it “fails to consider a
relevant factor that should have received significant weight, gives significant weight
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to an improper or irrelevant factor, or considers only the appropriate factors but
commits a clear error of judgment in weighing those factors.” United States v.
Moore, 565 F.3d 435, 438 (8th Cir. 2009) (quoting United States v. Kowal, 527 F.3d
741, 749 (8th Cir. 2008)). The district court did not make any of these missteps. At
sentencing, the court explained that it considered all of the evidence in light of the 18
U.S.C. § 3553(a) factors, including “just punishment, general deterrence and
incapacitation.” Though the court expressed a desire to “give [Harvey] more help,”
it stated that it was “not willing to do anything out of the sentencing guidelines.” The
court expressed concern that Harvey’s criminal record included multiple felony
offenses and several examples of recidivism. Though Harvey had been imprisoned
twice and undergone treatment, the court noted that “nothing seem[ed] to work.” In
light of Harvey’s criminal record, the court’s reasoned consideration, and the
presumption of reasonableness that attaches to within-guidelines sentences, see
United States v. Goodrich, 739 F.3d 1091, 1099 (8th Cir.), cert. denied, 574 U.S. ---,
135 S. Ct. 150 (2014), we find no abuse of discretion.
For the foregoing reasons, we affirm.
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