United States v. Maldonado

• Decision Date: 25 July 2017
• Docket Number: No. 16-3882,16-3882
• Citation: 864 F.3d 893
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Victor Hugo MALDONADO, Defendant–Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

864 F.3d 893

UNITED STATES of America, Plaintiff–Appellee
v.
Victor Hugo MALDONADO, Defendant–Appellant

No. 16-3882

United States Court of Appeals, Eighth Circuit.

Submitted: June 8, 2017
Filed: July 25, 2017

Counsel who presented argument on behalf of the appellant and appeared on the brief was Bradley Ryan Hansen, AFPD, of Sioux City, IA.

Counsel who presented argument on behalf of the appellee and appeared on the brief was John H. Lammers, AUSA, of Sioux City, IA.

Before WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.

GRUENDER, Circuit Judge.

Victor Maldonado pleaded guilty to possession of a firearm by a prohibited person and was sentenced to 84 months' imprisonment. He now appeals his sentence, arguing that the district court¹ committed procedural error in determining his advisory sentencing guidelines range by finding that two of his prior convictions qualified as "controlled substance offenses" and by applying an enhancement for possessing a firearm in connection with another felony offense. For the reasons below, we affirm.

I.

On October 7, 2015, police officers in Sioux City, Iowa stopped Maldonado's vehicle and discovered a .40 caliber handgun, a bag containing marijuana, and a methamphetamine pipe. Maldonado, a felon, was arrested and charged with possession of a firearm by a prohibited person. See 18 U.S.C. §§ 922(g)(1) & (g)(3), 924(a)(2). Maldonado pleaded guilty to this offense and proceeded to sentencing.

Prior to sentencing, the probation office prepared a Presentence Investigation Report ("PSR"). The PSR concluded that Maldonado had sustained two prior convictions for a "controlled substance offense" as defined in United States Sentencing Guideline ("U.S.S.G.") § 4B1.2(b). Specifically, the PSR cited a 2010 Nebraska conviction for "Criminal Attempt to Conspir[e] to Distribute Methamphetamine" and a 2013 Iowa conviction for "Possession with Intent to Deliver a Controlled Substance—Marijuana." See Neb. Rev. Stat. §§ 28-201, 28-202, 28-416 ; Iowa Code. Ann. § 124.401. As a result, the PSR recommended a base offense level of 24. See U.S.S.G. § 2K2.1(a)(2). The PSR also recommended a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) because Maldonado possessed the firearm "in connection with another felony offense," namely, carrying weapons in violation of Iowa Code Section 724.4(1). Maldonado objected to each of these recommendations, but the district court overruled both of his objections. Hence, the court concluded that Maldonado's base offense level was 24 and calculated his total offense level as 25 after applying the four-level enhancement and a three-level reduction for acceptance of responsibility.

As such, the court initially determined that Maldonado's advisory sentencing guidelines range was 110 to 120 months' imprisonment, based on a total offense level of 25, a criminal history category of VI, and a statutory maximum of 120 months, see 18 U.S.C. § 924(a)(2). Nevertheless, the district court granted Maldonado a downward variance because of its belief that the four-level enhancement for possessing a firearm in connection with another felony offense was "greater than necessary to accomplish all applicable sentencing purposes" where the "only other felony offense involves carrying weapons under Iowa law." On that basis, the court

864 F.3d 897

decided to "vary downward as if the enhancement was only one level instead of four levels." As a result, the court recalculated Maldonado's total offense level as 22 and his advisory guidelines range as 84 to 105 months. The court then sentenced Maldonado to 84 months' imprisonment. Maldonado now appeals, arguing that the district court committed procedural error by overruling each of his two objections and thereby miscalculating his advisory sentencing guidelines range.

II.

"When reviewing a defendant's sentence, we must ensure that the district court committed no significant procedural error, including failing to calculate (or improperly calculating) the Guidelines range." United States v. Hagen , 641 F.3d 268, 270 (8th Cir. 2011) (quotation omitted). In reviewing for procedural error, "[w]e review the district court's construction and application of the sentencing guidelines de novo and its factual findings for clear error." Id.

Maldonado argues that the district court committed procedural error in two ways. First, he argues that the district court erroneously concluded that his Iowa and Nebraska convictions each qualify as a "controlled substance offense" under U.S.S.G. § 4B1.2(b). Second, he argues that the court erroneously applied a four-level enhancement for possession of a firearm "in connection with another felony offense" under U.S.S.G. § 2K2.1(b)(6)(B). We address each argument in turn.

A.

U.S.S.G. § 2K2.1(a)(2) provides for a base offense level of 24 "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.2(b) defines a "controlled substance offense" as:

an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

Application Note 1 to § 4B1.2 explains that "controlled substance offenses also include ‘aiding and abetting, conspiring, and attempting to commit such offenses.’ "

"To determine whether a prior conviction qualifies as a controlled substance offense, the court must apply the ‘categorical approach’...." United States v. Robinson , 639 F.3d 489, 495 (8th Cir. 2011) (citations omitted). "Under this approach, we look not to the facts of the particular prior case, but instead to whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding [controlled substance offense]." United States v. Roblero-Ramirez , 716 F.3d 1122, 1125 (8th Cir. 2013) (quotation omitted). To determine whether the state statute categorically fits within the generic federal definition, "we must presume that the conviction rested upon nothing more than the least of the acts proscribed by the state law and then determine whether even those acts are encompassed by the generic federal offense." Id. (quotation omitted).

If a state statute is broader than the generic federal definition, we must determine whether the statute is "divisible," meaning that it "comprises multiple, alternative versions of the crime." Descamps v. United States , –––U.S. ––––, 133 S.Ct. 2276, 2284, 186 L.Ed.2d 438 (2013). If a statute is divisible, courts may apply the "modified categorical approach."

864 F.3d 898

Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). "Under that approach, a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Id. "The court can then compare that crime, as the categorical approach commands, with the relevant generic offense." Id.

The modified categorical approach may only be applied to statutory offenses listing alternative "elements," rather than alternative "means." Id. at 2253-54. "Elements are the constituent parts of a crime's legal definition—the things the prosecution must prove to sustain a conviction." Id. at 2248 (quotation omitted). "Means," in contrast, "need neither be found by a jury nor admitted by a defendant." Id.

Here, Maldonado's 2013 Iowa conviction was for a violation of Iowa Code § 124.401, which states:

Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance, a counterfeit substance, a simulated controlled substance, or an imitation controlled substance, or to act with, enter into a common scheme or design with, or conspire with one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance, a counterfeit substance, a simulated controlled substance, or an imitation controlled substance.

Iowa Code Ann. § 124.401(1). His 2010 Nebraska...