United States v. Jaunte Berry, Sr.
930 F.3d 997
| 8th Cir. | 2019Background
- Jaunte Lamar Berry, Sr. pleaded guilty to possession with intent to distribute methamphetamine (21 U.S.C. § 841(a)(1)).
- At sentencing the district court attributed uncharged 2015 drug activity to Berry as relevant conduct under U.S.S.G. § 1B1.3, despite an intervening period of incarceration.
- The court also applied a two-level "criminal livelihood" enhancement under U.S.S.G. § 2D1.1(b)(15)(E) (2016), finding Berry derived income from drug activity exceeding the statutory minimum threshold.
- The district court calculated a Guidelines range of 360–480 months, then varied downward and imposed a 300-month sentence.
- Berry appealed, challenging (1) the § 1B1.3 relevant-conduct finding as temporally remote, (2) the § 2D1.1(b)(15)(E) enhancement because wired funds were not "income," and (3) substantive reasonableness of the sentence given addiction and limited prior sentences.
Issues
| Issue | Plaintiff's Argument (Berry) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether 2015 uncharged drug activity may be included as relevant conduct under U.S.S.G. § 1B1.3 despite a >1-year gap and intervening incarceration | 2015 activity was too remote in time to be part of the same course of conduct or common scheme | Evidence (common accomplices, similar activity) ties 2015 and 2017 conduct as same course/scheme | Affirmed: district court did not clearly err; common accomplices supported finding |
| Whether wired $22,000 constitutes "income" for the criminal-livelihood enhancement under U.S.S.G. § 2D1.1(b)(15)(E) | The $22,000 were debts/payments, not "income," so enhancement shouldn't apply | Gross cash flow from drug activity (including wired funds and on-hand cash) satisfies income requirement | Affirmed: "income" read as gross income; evidence supported enhancement |
| Whether the income threshold (>2,000 × federal hourly minimum wage) must mean net profit | Income must reflect gross receipts, not net profit; otherwise defendants with low margins avoid enhancement | Gross receipts are appropriate measure tied to minimum wage comparison | Court adopts gross-income approach; enhancement properly applied |
| Whether Berry’s 300-month sentence was substantively unreasonable | Sentencing failed to give sufficient weight to addiction, lack of serious priors, and short prior sentences | Court considered these factors and granted a downward variance; age and lack of long priors supported variance | Affirmed: no abuse of discretion in substantive reasonableness |
Key Cases Cited
- United States v. Waln, 916 F.3d 1113 (8th Cir.) (standards for review of Guidelines application and factual findings at sentencing)
- United States v. Purham, 754 F.3d 411 (7th Cir. 2014) (discussion of remoteness test for course-of-conduct and common-scheme analyses)
- United States v. Gordon, 852 F.3d 126 (1st Cir. 2017) (interpreting "income" for livelihood enhancement as gross receipts)
- United States v. Waters, 883 F.3d 1022 (8th Cir. 2018) (standard of review for substantive reasonableness)
- United States v. Feemster, 572 F.3d 455 (8th Cir. 2009) (factors constituting abuse of discretion in sentencing)
- United States v. Kane, 552 F.3d 748 (8th Cir. 2009) (sentencing-factor review principles)