United States v. Benjamin Pepper
2014 U.S. App. LEXIS 5229
| 8th Cir. | 2014Background
- Pepper pled guilty to possession of a firearm by an unlawful user of a controlled substance and was sentenced to 60 months.
- Pepper was arrested in 2009 with meth, marijuana, and four firearms found in his car.
- State charges for simultaneous possession of drugs and firearms led to a 2012 state court conviction and 120-month sentence.
- Prior to federal sentencing, the PSR recommended a trafficking-in-firearms enhancement and three criminal-history points for the state conviction.
- Pepper objected to both recommendations, but the district court applied them and sentenced Pepper within the guidelines range.
- Pepper appeals arguing the district court misapplied the trafficking enhancement and the criminal-history points.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trafficking enhancement proper? | Pepper contends PSR facts for the enhancement were unreliable. | Pepper argues the district court erred by relying on those PSR paragraphs. | Enhancement upheld; district court correctly applied it based on corroborated PSR facts. |
| Use of hearsay in PSR for sentencing? | Pepper argues Charles’s statements were hearsay and should not be used. | District court could rely on hearsay with reliability indicia; Pepper did not preserve objection. | No plain error; statements corroborated by firearm recovered in Charles’s possession. |
| Prior sentence for 4A1.1(a) properly counted? | State conviction was not ‘previously imposed’ before the federal sentence and was part of the instant offense. | State sentence was properly ‘previously imposed’ and severable from the federal conduct. | Correctly counted; state sentence is ‘previously imposed’ and severable from the federal offense. |
Key Cases Cited
- United States v. Woodard, 694 F.3d 950 (8th Cir. 2012) (de novo review of guidelines application; preponderance standard for facts)
- United States v. Brooks, 648 F.3d 626 (8th Cir. 2011) (precedent on factual basis for enhancements; admission not required for PSR facts)
- United States v. Freeman, 718 F.3d 1002 (8th Cir. 2013) (relevance of PSR facts when objections lack specificity)
- United States v. Oaks, 606 F.3d 530 (8th Cir. 2010) (claims of PSR accuracy and sentencing procedures)
- United States v. Davis, 583 F.3d 1081 (8th Cir. 2009) (reliance on PSR when challenged; applicability to this case)
- United States v. Hernandez, 712 F.3d 407 (8th Cir. 2013) (prior-sentence and conduct separation; fact-intensive review)