U.S. v. Feemster

• Decision Date: 25 April 2007
• Docket Number: No. 06-2059.,06-2059.
• Citation: 483 F.3d 583
• Parties: UNITED STATES of America, Appellant, v. Kendrix D. FEEMSTER, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

483 F.3d 583

UNITED STATES of America, Appellant, v. Kendrix D. FEEMSTER, Appellee.

No. 06-2059.

United States Court of Appeals, Eighth Circuit.

Submitted: November 14, 2006.

Filed: April 25, 2007.

Raymond Martin Meyer, argued, St. Louis, MO, for appellant.

Lucille G. Liggett, argued, St. Louis, MO, for appellee.

Kendrix D. Feemster, Terre Haute, IN, pro se.

Before RILEY, BEAM, and SMITH, Circuit Judges.

RILEY, Circuit Judge.

After calculating an advisory United States Sentencing Guidelines range of 360 months' to life imprisonment, the district court sentenced Kendrix D. Feemster (Feemster) to 120 months' imprisonment and 8 years' supervised release. We vacate the sentence and remand for resentencing.

I. BACKGROUND

On March 11, 16, and 25, 2004, respectively, Feemster sold 5.7, 6.8, and 11.2 grams of crack cocaine to an undercover Drug Enforcement Administration agent. Based on the March 16 and 25 sales, the grand jury charged Feemster with two counts of knowingly and intentionally distributing crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(iii).¹ Before trial, the government filed an information pursuant to 21 U.S.C. § 851(a) providing notice that, if convicted, Feemster would be subject to a ten-year mandatory minimum sentence due to Feemster's prior conviction for a felony drug offense. A jury convicted Feemster on both counts.

The United States Probation Office prepared a presentence investigation report (PSR) detailing Feemster's criminal history.² Feemster had juvenile adjudications for: (1) at age 13, attempted stealing; (2) at age 14, making a false bomb report; and (3) at age 15, stealing, attempted stealing, and second-degree burglary. Feemster's adult convictions and sentences include: (1) at age 16, possession of a controlled substance (crack cocaine) and possession of marijuana, resulting in a suspended sentence and probation, which he successfully completed; (2) at age 17, first-degree burglary, resulting in a sentence of six years' imprisonment (including citations for conduct violations on sixty-five separate occasions), from which he was twice conditionally released and both times his conditional release was revoked (submitting a positive urine test for marijuana); (3) at age 23, first-degree robbery (involving a handgun carried by his co-defendant), resulting in a ten-year suspended sentence and probation, which he violated; and (4) at age 24, possession of marijuana, resulting in a sixty-day suspended sentence and one-year unsupervised probation.

Before applying the career offender enhancement, Feemster's base offense level was 26, see U.S.S.G. § 2D1.1(c)(7), and Feemster was a criminal history category IV, resulting in an advisory Guidelines sentencing range of 92 to 115 months' imprisonment. Due to Feemster's prior conviction for a felony drug offense, Feemster's statutory minimum sentence was 120 months' imprisonment. See 21 U.S.C. §§ 841(b)(1)(B), 851. Because Feemster was 26 years old when he committed the offense and was previously convicted of two crimes of violence—burglary and robbery — the PSR applied the career offender enhancement. See U.S.S.G. § 4B1.1(a).³ After applying the career offender enhancement, Feemster's career offender offense level was 37 and Feemster was a criminal history category VI, resulting in an advisory Guidelines sentencing range of 360 months' to life imprisonment.

The district court imposed a sentence of 120 months' imprisonment and 8 years' supervised release. The government appealed, and we remanded to the district court for resentencing, stating "we find the record at this time does not permit our court to undertake a meaningful analysis of whether the sentence imposed is unreasonable." United States v. Feemster, 435 F.3d 881, 884 (8th Cir.2006).

On remand, the district court expounded on its reasoning for sentencing Feemster to 120 months' imprisonment, stating:

Now, at the time that Mr. Feemster was sentenced[,] he was 27. At the time of the offense, . . . he was 26. . . . Now, it's unquestioned that Mr. Feemster was a troubled youth. As they say, "Youth is wasted on the young." They just need a little wisdom. When he started getting . . . these points[,] . . . he was 17 years old.

In any event, [t]he [c]ourt has looked at the 3553(a) factors and at the time the instant offense was committed the defendant was 26 years of age, it involved the distribution of 18 grams of cocaine base to a federal agent. No weapon was present. And while the defendant does have a record and much of it is significant because of his being a troubled youth, it would seem it includes violent felony convictions, and that's what made him a career offender, and many—most of those . . . prior convictions occurred when he was a juvenile.

Now, as [sic] his adult conviction[,] he's placed on probation. He successfully completed that. Now, his second adult conviction involved the burglary of a home. And his third adult conviction was for robbery first degree which involved a weapon. However, his co[-]defendant, Dean Goddard, who had the weapon and defendant did not. And his fourth and final conviction was a misdemeanor for possession of marijuana. He was placed on probation. He successfully completed that probation.

So to me I think this 360 months to life is excessive. I think it pretty much takes away Mr. Feemster's life, so . . . in light of these 3553(a) factors, so I think an aggregate term of 120 months to be served concurrently with his state sentence of 1 CR-2495A and eight years of supervised release would seem to address the sentencing objectives of punishment and deterrence and incapacitation. I think . . . ten years and then eight years of supervised release, I think . . . that's 18 years right there that he will be under some kind of supervision by the court system.

The government appeals.

II. DISCUSSION

Neither party disputes the district court correctly calculated Feemster's advisory Guidelines sentencing range. We, therefore, review for abuse of discretion the reasonableness of Feemster's sentence. United States v. Spears, 469 F.3d 1166, 1170 (8th Cir.2006) (en banc), petition for cert. filed (U.S. Mar. 2, 2007) (No. 06-9864). "[A]n abuse of discretion may occur when (1) a court fails to consider a relevant factor that should have received significant weight; (2) a court gives significant weight to an improper or irrelevant factor; or (3) a court considers only the appropriate factors but in weighing those factors commits a clear error of judgment." United States v. Haack, 403 F.3d 997, 1004 (8th Cir.) (internal quotation omitted), cert. denied, ___ U.S. ___, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005). We ask "whether the district court's decision to grant a § 3553(a) variance from the appropriate guidelines range is reasonable," and if granting the variance is reasonable, then we ask whether the extent of the variance is reasonable. United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir.2005). "[T]he court has a range of choice, and . . . its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law." Haack, 403 F.3d at 1004 (quotation omitted). "As the size of the variance grows, so too must the reasons that warrant it." United States v. Medearis, 451 F.3d 918, 920 (8th Cir.2006).

The government argues the grounds supporting the variance do not support the extent of the variance (eleven levels or 67%). Feemster disagrees, arguing convictions before and after a defendant turns eighteen are not the same for purposes of sentencing in light of Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). We consider in turn each ground for the variance.

A. Prior Convictions Before Turning Eighteen-Years Old

The district court described Feemster as a "troubled youth" and observed the career offender enhancement was triggered by a prior conviction that occurred before Feemster turned eighteen. For purposes of the career offender enhancement, any felony conviction, as long as the defendant was tried as an adult, is classified as a "prior felony conviction," regardless of the defendant's age at the time of the offense. See U.S.S.G. § 4B1.2 cmt. n. 1. Therefore, assuming the defendant was tried as an adult, the defendant's age at the time of the offense is not a relevant consideration for purposes of the career offender enhancement.

After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the application of the Guidelines is no longer mandatory and a sentence must be imposed in accordance with the factors set forth in 18 U.S.C. § 3553(a). Spears, 469 F.3d at 1173. Section 3553(a)(1) requires consideration of "the history and characteristics of the defendant." Here, Feemster's history and characteristics include, among other things, five juvenile adjudications, three adult convictions for conduct occurring before he turned eighteen, two adult convictions for conduct occurring after he turned eighteen, and the instant conviction. Feemster's status as a juvenile at the time he committed the robbery is relevant under § 3553(a)(1), because it is part of Feemster's history and characteristics. See United States v. Ryder, 414 F.3d 908, 920 (8th Cir.2005).

Feemster argues Roper v. Simmons permits courts to show leniency to defendants who would otherwise serve lengthy terms of imprisonment due to their past criminal conduct occurring before they turned eighteen. For purposes of § 3553(a)(2), prior convictions for conduct occurring before and after a defendant turns eighteen are not identical. In Simmons, the Supreme Court held that conduct occurring before a defendant turned eighteen could not justify capital punishment, noting "the death penalty is reserved for a narrow category of crimes and offenders." Simmons, 543 U.S. at 569, 578-79, 125 S.Ct. 1183. The Supreme Court excluded juveniles from the offenders eligible for the death penalty in...