125 F. App'x 98
8th Cir.
2005

Melvin QUINN, Appellant, v. UNITED STATES of America, Appellee.

No. 04-2092

United States Court of Appeals, Eighth Circuit

March 16, 2005

125 Fed. Appx. 98

Before WOLLMAN, MCMILLIAN, and BENTON, Circuit Judges.

Counsel: Melvin Quinn, Memphis, TN, pro se. Michael A. Price, U.S. Attorney‘s Office, Cape Girardeau, MO, for Defendant-Appellant.

PER CURIAM.

Melvin Quinn was convicted of one count of knowingly and intentionally distributing five grams or more of cocaine base, a violation of 21 U.S.C. § 841. He appeals from the sentence imposed upon him by the district court.1 We affirm.2

I.

Section 841(b)(1)(B) of Title 21 provides that an individual convicted of distributing five grams or more of cocaine base shall be sentenced to a minimum of five years and a maximum of forty years’ imprisonment. When an individual commits that offense “after a prior conviction for a felony drug offense has become final,” Section 841(b)(1)(B) increases the mandatory minimum from five to ten years. Because Quinn had a 1997 state felony drug conviction, the district court sentenced him to ten years’ imprisonment.

Quinn asserts that the district court‘s conclusions that his prior state conviction constituted a felony drug offense and that the conviction had become final were both impermissible instances of judicial fact-finding. These conclusions are part and parcel to the fact of a prior conviction and do not implicate constitutional concerns. See United States v. Vieth, No. 04-1451, 2004 WL 2559109, slip op. at 8 (8th Cir. Feb. 8, 2005) (“As to the enhancement for a prior conviction, the Supreme Court has consistently said that the fact of a prior conviction is for the court to determine, not a jury.“).

II.

Quinn argued at sentencing and now asserts on appeal that the United States Sentencing Guidelines as a whole are unconstitutional. Quinn‘s sentence was determined based upon the mandatory minimum sentence set forth in the governing criminal statute, not upon the application of the federal sentencing guidelines. See Vieth, slip op. at 8, 2004 WL 2559109. In any event, the Supreme Court has now made clear that the guidelines as a whole are not unconstitutional. See United States v. Booker, — U.S. —, —, 125 S.Ct. 738, 768, 160 L.Ed.2d 621, — (2005) (severing and excising two provisions of the Sentencing Reform Act of 1984 but leaving intact the remaining guidelines).

The sentence is affirmed.

Tyrone BUCKLEY, Appellant, v. CORRECTIONAL MEDICAL SERVICES, INC.; Unknown Hallazgo, Dr.; Gary Campbell, Dr., Appellees.

No. 04-1473

United States Court of Appeals, Eighth Circuit

March 16, 2005

125 Fed. Appx. 98

Before BYE, RILEY, and COLLOTON, Circuit Judges.

Counsel: Tyrone Buckley, St. Louis, MO, pro se. Gary Phillip Paul, Lawrence R. Smith, Aaron I. Mandel, Brinker & Doyen, St. Louis, MO, for Defendants-Appellees.

PER CURIAM.

Former Missouri inmate Tyrone Buckley appeals the district court‘s1 adverse grant of summary judgment as to Correctional Medical Services, Inc. (CMS) in his 42 U.S.C. § 1983 action. In the lawsuit, Buckley claimed that CMS had been deliberately indifferent to his serious medical need in that recommended elbow surgery had been repeatedly cancelled and delayed.2 Following our de novo review, we conclude that summary judgment as to CMS was proper. See Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir.2000) (standard of review).

While the twenty-month delay in scheduling the surgery once it was recommended is troubling, the record shows that the delay was due to staff members’ misunderstanding and miscommunication concerning the scheduling process and failure to follow through—not to a CMS policy or action, or to an action by those representing CMS official policy. See Burke v. N.D. Dep‘t of Corr. & Rehab., 294 F.3d 1043, 1044 (8th Cir.2002) (per curiam) (corporate liability under § 1983). Further, although Buckley testified that he experienced some pain, he did not counter the testimony of two CMS physicians that the surgery was elective and not a medical emergency, and he admitted that no one had told him the delay was detrimental. See Sherrer v. Stephens, 50 F.3d 496, 496-97 (8th Cir.1994) (per curiam) (to show deliberate indifference, plaintiff must submit evidence that, inter alia, defendants ignored acute or escalating condition, given type of injury in his case).

Accordingly, we affirm.

Notes

1
The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri. The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri.
2
We deny Quinn‘s February 9, 2005, pro se motion. Buckley named other defendants, but on appeal he is challenging the ruling only as to CMS.