United States v. Don Schroers
691 F. App'x 283
8th Cir.2017Background
- Don A. Schroers pleaded guilty to (1) being a felon in possession of firearms/ammunition (18 U.S.C. § 922(g)(1)) and (2) conspiracy to possess with intent to distribute methamphetamine (21 U.S.C. §§ 841, 846).
- The PSR grouped the counts separately, produced a combined adjusted offense level of 36, reduced 3 levels for acceptance, yielding offense level 33 and Criminal History Category IV.
- The Guidelines advisory range was 188–235 months; the district court adopted the PSR calculations.
- Schroers sought a downward departure under U.S.S.G. § 4A1.3(b)(1), arguing his Criminal History Category was overstated because three points derived from 1994 convictions that were sentenced out of chronological order and would not have counted but for that sequencing; he also cited the age of those offenses and lack of recent violent conduct.
- The district court denied the downward departure and sentenced Schroers to 144 months on the conspiracy count and a concurrent 120-month term (the statutory maximum) on the firearms count.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of a downward departure under U.S.S.G. § 4A1.3(b)(1) was reviewable/error | Schroers: CHC IV overstated his history because 1994 convictions were sentenced out of order and would not count if sentenced chronologically; offenses are old and nonviolent | Government: District court acted within discretion; no constitutional motive or misconception of authority to depart | Court: No reviewable error; refusal to depart is not reviewable absent unconstitutional motive or belief it lacked authority; denial affirmed |
| Whether imposing the statutory maximum (120 months) on the § 922(g) count was procedural/plain error | Schroers: Court misapplied U.S.S.G. § 5G1.2 and treated the Guidelines sentence as the statutory maximum, thus procedurally erred | Government: Court correctly calculated total punishment (144 months) under § 5G1.2 and was constrained by the statutory 10‑year maximum on the firearms count | Court: No error; court properly applied § 5G1.2, imposed total punishment where possible, and lawfully imposed statutory maximum on firearms count; affirmed |
Key Cases Cited
- United States v. Stong, 773 F.3d 920 (8th Cir. 2014) (refusal to grant a downward departure is generally not reviewable absent unconstitutional motive or mistaken belief of lack of authority)
- United States v. Heath, 624 F.3d 884 (8th Cir. 2010) (same principle regarding nonreviewability of downward-departure denials)
- United States v. Frokjer, 415 F.3d 865 (8th Cir. 2005) (Booker did not alter rule that denial of downward departure is unreviewable)
- Booker v. United States, 543 U.S. 220 (2005) (sentencing guidelines are advisory)
- United States v. Keatings, 787 F.3d 1197 (8th Cir. 2015) (applying plain-error review where defendant did not object to procedural sentencing error at sentencing)