United States of America v. Allen E. Peithman, Jr.; United States of America v. Allen E. Peithman, Jr.; United States of America v. AEP Properties, L.L.C.; United States of America v. Sharon A. Elder
No. 17-2721, No. 17-2722, No. 17-2723, No. 17-2768
United States Court of Appeals For the Eighth Circuit
February 27, 2019
ERICKSON, Circuit Judge.
Appeals from United States District Court for the District of Nebraska - Lincoln. Submitted: November 14, 2018.
Plaintiff - Appellee
v.
Allen E. Peithman, Jr.
Defendant - Appellant
No. 17-2722
United States of America
Plaintiff - Appellee
v.
Allen E. Peithman, Jr.
Defendant - Appellant
No. 17-2723
United States of America
Plaintiff - Appellee
v.
Defendant - Appellant
No. 17-2768
United States of America
Plaintiff - Appellee
v.
Sharon A. Elder
Defendant - Appellant
Appeals from United States District Court for the District of Nebraska - Lincoln
Submitted: November 14, 2018
Filed: February 27, 2019
Before BENTON, BEAM, and ERICKSON, Circuit Judges.
ERICKSON, Circuit Judge.
In 2013-2014, law enforcement officers in Lincoln, Nebraska, began focused investigations on “smoke shops” selling “potpourri,” a product containing synthetic marijuana that when consumed sometimes resulted in significant adverse health effects. “Dirt Cheap” owned by Allen E. Peithman, Jr. and “Island Smokes” owned by Sharon A. Elder were two of the shops investigated. Elder is Peithman‘s mother.
Elder also raises numerous challenges. She asserts that the evidence was insufficient to sustain convictions for distributing misbranded drugs and structuring. She joins Peithman‘s claim that the money judgment was imposed in error, and argues the district court erred by considering acquitted conduct at sentencing, by calculating the Sentencing Guidelines range incorrectly, by refusing to allow a public authority/entrapment by estoppel defense, and by imposing a substantively unreasonable sentence. We reverse that portiоn of the money judgment imposed jointly and severally pursuant to
I. Background
In late 2013, law enforcement officers, acting in an undercover capacity, began buying products suspected of containing synthetic marijuana from smoke shops. Dirt Cheap and Island Smokes were two of the targeted shops where undercover buys occurred in 2014 and 2015. Allen Peithman first began operating Dirt Cheap in 2008. Dirt Cheap sold cigarettes, glass pipes, water pipes, t-shirts, e-cigarette products, “typical head shop stuff.” When the store first opened, Peithman sold “K2“, which is now referred to as “potpourri.” Peithman explained to law enforcement that “K2”
Peithman‘s operation of Dirt Cheap was interrupted when he was incarcerated on a federal firearm charge between March 2013 and June 2014. When Peithman was operating Dirt Cheap, he primarily relied on his wholesale suppliers to review the list of prohibited controlled substances and to insure that the “potpourri” complied with state and federal controlled substances laws. He informed law enforcement that the vendors constantly changed the products they sold to keep ahead of the evolving law. The “potpourri” sold at Dirt Cheap and Island Smokes was purchased primarily on the Internet with money orders. According to Peithman, the profit margins plummeted for “potpourri” sold during the last few years of his business. Nonetheless, on a “good day” Dirt Cheap made around five thousand dollars. On a “bad day” it would be a couple thousand dollars.
During Peithman‘s incarceration, Dirt Cheap was operated by Elder, although Peithman retained ownership of thе name Dirt Cheap. In September 2014, Elder opened her own store, Island Smokes, because Peithman did not want to sell “potpourri” at Dirt Cheap any longer. Peithman purchased the property for the new store from his uncle and leased it to his mother. After Island Smokes opened for business, Dirt Cheap ceased selling “potpourri” but continued to sell what law enforcement consider drug paraphernalia as well as other items typically sold in smoke shops. Island Smokes sold drug paraphernalia, “potpourri,” and other items typically sold in smokes shops.
Between February 2014 and August 2015, law enforcement officers conducted at least nine undercover buys. Several of the packets purchased were sent to a lab and tested positive under the United States Drug Enforcement Administration (“DEA“) drug scheduling as a Schedule I controlled substance. In addition, in April 2014, law
By September of 2014, the Lincoln police department was receiving an average of 20 to 30 calls per week about people hanging around Island Smokes and trespassing at an adjacent apartment complex. Over a four-day period in April 2015, law enforcement officers responded to at least seven medical emergencies involving “potpourri” bought at Island Smokes and smoked by the purchaser. Law enforcement encountered some of the overdose victims near Island Smokes and others they visited at the hospital.
On April 23, 2015, law enforcement officers executed a search warrant at Island Smokes. One of the investigators noticed 100 pipes in a storage area behind the front counter, which in his experience were commonly used to smoke methamphetamine. When questioned, Elder called them “oil burners.” When asked if Elder had aromatic oil to burn in the pipes, she located two small vials from behind the checkout counter. Elder reported to law enforcement that she generally kept 10 vials of oil per 100 pipes.
Officers seized a “K2” packet and pipe discovered while searching the back garage area, which upset Elder because she believed all the “K2/potpourri” had been removed from the store. Elder told investigators during the search of her store that even though the “potpourri” packets were labeled “do not burn,” she knew a majority of her customers smoked “potpourri,” purportedly to relax. She also informed the investigators that her customers had requested a milder blend because her current and recent stock was too strong and they did not like the effects.
On August 25, 2015, law enforcement officers executed a search warrant at Dirt Cheap. Glass pipes, bongs, hookahs, water pipes, scales, grinders, dugouts, one-hitters, plastic baggies, rolling papers, screens, other types of drug paraphernalia, and business records were seized. Law enforcement officers also obtained bank records for Peithman and Elder and their business accounts. An operations officer for West Gate Bank testified during the trial that multiple cash deposits in Peithman‘s Dirt Cheap business account would be made on a single day. For example, on December 19, 2013, a $5,000 cash deposit was made at 10:12 a.m. using teller #54; a second $4,000 cash deposit was made to the same account at 2:20 p.m. at the same branch using teller #56; and a third cash deposit of $1,292 was made 18 minutes later to the same account at the same branch using teller #58.
Between October 1, 2013, and May 11, 2015, a total of $1,100,957.65 in cash was deposited into bank accounts belonging to Peithman, Elder, Cornerstone Plaza, and AEP Properties. An expert in the field of financial investigations testified at trial about transactions indicative of structuring. He opined that the “even dollar” cash deposits made to the various accounts belonging to businesses were indicative of an intent to structure because they are inconsistent with normal business activity. He
After her arrest for charges related to this case, Elder stressed to law enforcement that she, not her son, was solely responsible for the sale of “potpourri” during and after Peithman‘s incarceration. Both Elder and Peithman asserted at trial that Elder “went to great lengths” and used “due diligence” to make sure the products she was selling were legal. They cited, as examples, Elder‘s efforts to review the chemical sheets associated with the products, her discussions with the suppliers, her attendance at conferences, her consultation with a lawyer, and her decision to keep in contact with law enforcement and follow their advice, such as when she was asked to stop selling a particular product because of the serious side effects people were experiencing.
After what the district court described as “a long, and very well fought jury trial,” the jury convicted Peithman, Elder, and AEP Properties on some counts and acquitted on others. The jury found Peithman and Elder guilty of conspiracy to distribute drug paraphernalia, conspiracy to commit mail fraud, investment of illicit drug profits, conspiracy to distribute misbranded drugs, and conspiracy to structure financial transactions. Peithman was sentenced to a period of incarceration of 115 months and Elder to a term of 63 months. The lengthier sentence for Peithman was due primarily to his criminal history. Both sentences were at the high end of the applicable advisory Sentencing Guidelines range as calculated by the court.
The government also sought a money judgment as part of the forfeiture allegations pertaining to the drug paraphernalia conviction, the mail fraud conviction, and the structuring conviction. That issue was decided by the court. The government requested a money judgment in the amount of $2,248,728.56. After conducting a hearing on the issue, the court found, by a preponderance of the evidence, the appropriate money judgment was in the amount of $1,142,942.32, which “represent[ed] the wholesale costs of acquiring the drug paraphernalia and potpourri, the sale of which generated the structuring.” The court specifically rejected the “proceeds theory” and was cautious to take steps to ensure double-counting did not occur. This timely appeal followed.
Peithman has raised eight issues on appeal, challenging decisions made post-trial. Elder has raised ten issuеs, challenging decisions made during the trial and post-trial. We have carefully considered each of their arguments and in this opinion group related claims.
II. Discussion
1. Peithman‘s 18 U.S.C. § 3147 Conviction
Peithman asked for a remedy beyond vacating the conviction. He moved for a new trial, arguing the entire trial was tainted by permitting evidence of his prior conviction and conditions of supervised release because Count XIV was submitted to the jury. The court denied the new trial motion on the ground that the interviews Peithman and Elder provided to law enforcement would have been admitted into evidence regardless of Count XIV and no “conceivable prejudice” could exist since there were 18 references during Peithman‘s interview and five references during Elder‘s interview to the fact that Peithman had been in prison, was on supervised release, and was staying out to the smoke shop business to avoid trouble with his probation officer.
During the new trial motion and now on appeal, the parties characterize Peithman‘s defense theory as one in which Peithman was not involved in unlawful activity during the times alleged in the indictment because he was in jail during a majority of that time and that following his release he consciously avoided the business due to his supervised release conditions. Peithman argues on appeal that he is entitled to a new trial because this defense was thrust upon him when the government wrongfully charged him under
We have reviewed the trial transcript. The defense arguments for acquittal advanced during the trial are remarkably different than what has been portrayed on appeal. The prosecutor made the following assertions during her opening statement: Peithman initially ran Dirt Cheap and then was “gone for a while;” while he was gone, Peithman had given a power of attorney to Elder to run the store; and in the summer of 2014, Peithman went “back to work” at Dirt Cheap while on “what‘s called supervised release from a prior matter.”
Peithman‘s attorney also mentioned during his opening statement Peithman‘s absence from the business. Counsel explained to the jury:
And when this indictment happened in 2013, all the way up until June of 2014, he wasn‘t even around. Now, he had started Dirt Cheap back in 2008 and ran it for a while until he left the state. So for the first part of this indictment, whiсh on Count I starts from October 1st, 2013, and goes through April 23rd of 2015, Allen Peithman, AJ, as many of his friends call him, wasn‘t even around for most of that. He had nothing to do with the business. Dirt Cheap was still -- was still going, operated by his mother, but he had nothing to do with the day-to-day operations.
It was at this point that Peithman‘s theory of defense diverged from the prosecutor‘s theory. Peithman contended he was not guilty because he changed occupations. According to defense counsel, Peithman shifted from being a business owner to being a landlord. Counsel clearly laid out Peithman‘s intentions to the jury:
AJ was going to get away from the head shop, and he was going to start investing in real estate. He was going to be a landlord.
The shop at Dirt Cheap, he was a landlord. He collected rent from Dirt Cheap. He collected rent from Island Smokes. Every now -- His mom ran the business, Shari. Every now and then, she‘d need a favor from him, he is her son, to open the door sometimes when she couldn‘t make it down to Dirt Cheap. Would he take the cash that she‘d mаde that day and drop it in the bank? Yes.
But AJ was not in some type of agreement or conspiracy with his mother. He was a landlord and he was a son, and that‘s the evidence that you are going to hear.
During closing argument, Peithman‘s counsel reiterated comments he made during his opening statement. Peithman argued to the jury that he was being singled out because of his family‘s wealth. Counsel reiterated several times during his closing argument that Peithman was not in the smoke shop business; rather, he was a landlord. Counsel argued, in particular:
The whole thing was a game of gotcha. Follow the money. It‘s a game of gotcha because the Government wants their money. They want the Elder money. They could have shut this down at any time. They could have walked in there -- They had a positive lab for synthetic marijuana, I believe Officer Reynolds said, in summer of 2014, and they sat on it, because this case was bigger than this public health crisis that they now claim existed.
* * *
AJ gets out of prison. His mom has taken over the business. She buys him a property, like a mom might do who has money. She had, essentially, bought the business for him, so it‘s not odd that she bought the building and he was going to be the landlord. That doesn‘t make him part of the business.
Look, AJ had money. AJ was wealthy. He had that cash. He had those coins. He was making his own way.
Motions for a new trial are warranted only when “a serious miscarriage of justice may have occurred.” United States v. Braden, 844 F.3d 794, 801 (8th Cir. 2016) (quoting United States v. Fetters, 698 F.3d 653, 656 (8th Cir. 2012)). An evidentiary error is harmless if it did not substantially influence the jury‘s verdict. United States v. Aldridge, 664 F.3d 705, 714 (8th Cir. 2011) (quoting United States v. Henderson, 613 F.3d 1177, 1183 (8th Cir. 2010)). “Error may be harmless where ‘the government introduced ample competent evidence from which the jury could conclude beyond a reasonable doubt that the defendant was guilty even without the evidence that should have been excluded.‘” United States v. Cotton, 823 F.3d 430, 435 (8th Cir. 2016) (quoting Aldridge, 664 F.3d at 714).
The error in submitting to the jury a statutory sentencing enhancement is not one we consider lightly. On this record, however, the error was harmless. Both Peithman and Elder discussed Peithman‘s incarceration and supervised release status during their interview with law enforcement officers. Even if Count XIV had not existed, the court indicated it would have allowed those statements to be introduced at trial. Peithman has not persuadеd us that he likely would have been successful in
2. Public Authority/Entrapment by Estoppel Defense
Elder argues the district court erred by refusing to allow her to present a public authority/entrapment by estoppel defense. We review the refusal to permit an affirmative defense de novo because it is question of law. United States v. Carlson, 810 F.3d 544, 554 (8th Cir. 2016).
Elder sought to present a public authority or entrapment by estoppel defense on the ground that, after the inventory was seized during execution of the search warrant, the city attorney provided her with a community protection agreement. The agreement requested Elder to voluntarily “cease and desist” selling “potpourri” and it set a signing deadline of May 15, 2015. The letter warned Elder that if she did not voluntarily sign the agreement, the city would take “legal action in the very near future.” In seeking to present these affirmative defenses, Elder also relied on what she described as a “close working relationship with law enforcement” with regard to what substances were legal or illegal as well as an unnamed police officer who she alleged told her it was legal to sell synthetic cannabinoids in Lincoln.
A “public authority defense requires a defendant to show that [s]he was engaged by a government official to participate in a covert activity.” United States v. Parker, 267 F.3d 839, 843 (8th Cir. 2001) (citing United States v. Achter, 52 F.3d
“Entrapment by estoppel arises when a government official tells a defendant that certain conduct is legal, and the defendant commits what otherwise would be a crime in reasonable reliance on the official representation.” Parker, 267 F.3d at 844 (citing United States v. Benning, 248 F.3d 772, 775 (8th Cir. 2001)). In the letter to Elder, the city attorney never told Elder her conduct was legal. The city made no promises regarding criminal prosecutions and specifically explained to Elder that an agreement by the city not to take legal action against the businesses selling “potpourri,” such as declaring them public nuisances, was not binding on federal, state, or local prosecuting authorities. Elder has not shown a representation made by the city was misleading, let alone intentionally misleading. In addition, Elder cannot show reliance, particularly when the city attorney‘s statements were made after execution of the search warrant.
Elder‘s willingness to sign a community protection agreement, after contraband had been seized, is not evidence that a government official told Elder that her conduct was legal. Likewise, Elder‘s willingness to work with law enforcement by removing particularly potent “potpourri” packets for sale because consumers were overdosing and some almost died is not evidence that a government official told Elder the products were legal to sell. The district court properly declined to instruct the jury on the defense of entrapment by estoppel.
3. Sufficiency of the Evidence
“We review challenges to the sufficiency of the evidence de novo.” United States v. Johnson, 745 F.3d 866, 868-69 (8th Cir. 2014) (citing United States v. Sullivan, 714 F.3d 1104, 1107 (8th Cir. 2013)). The evidenсe is to be viewed “in the light most favorable to the guilty verdict, granting all reasonable inferences that are supported by that evidence.” Id. at 869. In our review, we do not weigh the evidence or the credibility of the witnesses. United States v. Wiest, 596 F.3d 906, 910 (8th Cir. 2010) (citing United States v. Honarvar, 477 F.3d 999, 1000 (8th Cir. 2007)). “We will reverse a conviction only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt.” Johnson, 745 F.3d at 869.
Sufficient evidence was presented to sustain a jury finding that Peithman was more than “merely associated with” Elder. Peithman and Elder ordered “potpourri” and drug paraphernalia from out-of-state suppliers. The products were shipped to Dirt Cheap and Island Smokes using interstate common carriers such as FedEx and UPS. Typically, payments for the shipments were made with money orders and/or cashier‘s checks. Peithman and Elder attempted to disguise the amounts and cash proceeds from the sale of illegal products by making cash deposits using different tellers, different branches of the same bank, different accounts, different banks, and by purсhasing money orders at multiple agents to avoid the filing of currency transaction reports for deposits exceeding the $10,000 threshold as provided in
Store employees testified about their knowledge and understanding of Peithman‘s involvement in the businesses. It was clear that Peithman and Elder
The evidence overwhelmingly established the existence of a conspiracy, that illicit drug profits were used to purchase real and personal property, the sale of misbranded drugs occurred during the time period alleged in the indictment, and structuring took place to disguise the proceeds being realized from the sale of unlawful controlled substances and drug paraphernalia. Neither Peithman nor Elder have presented a sufficient reason to disturb the jury‘s findings.
4. Request to Remove Sick Juror
Peithman argues the district court abused its discretion by refusing to substitute an alternate juror in place of a temporarily sick juror. See United States v. Blom, 242 F.3d 799, 805 (8th Cir. 2001) (noting “most rulings on juror challenges are reviewed on appeal for abuse of discretion“). Juror No. 4 announced on the afternoon of the fourth day of trial that she was tired and unable to concentrate. She had been taking medication for mononucleosis and was so tired in the evenings that she could not work as a Mary Kay consultant. The court recessed the trial for the day to allow the juror to rest. On the next morning, the juror indicated she was feeling better. The judge asked the following question, which was approved by the lawyers: “If you were to remain as a juror, are you confident or not confident that you will be able to render
In light of the juror‘s representation that she would be able to be attentive for the remainder of the trial and the lack of any indication the juror was unable to understand or appreciate the evidence that had been presented before she informed the court of her exhaustion, the district court did not abuse its discretion in denying the motion to strike the juror and replace her with an alternate.
5. Money Judgment
The indictment sought forfeiture under
The court imposed a money judgment in the total amount of $1,142,942.32 plus interest as provided by law. This amount consisted of the costs to purchase drug paraphernalia, which the court found totaled $117,653.57, plus the costs to purchase “potpourri” related to the mail fraud conviction, which the court found totaled $1,025,288.75.
When reviewing money judgments, we have explained: “[T]he law does not demand mathematical exactitude in calculating the proceeds subject to forfeiture.” United States v. Prather, 456 F. App‘x 622, 626 (8th Cir. 2012) (quoting United States v. Roberts, 660 F.3d 149, 166 (2d Cir. 2011)). “Rather, district courts may use general points of reference as a starting point for a forfeiture calculation and make reasonable extrapolations supported by a preponderance of the evidence.” Id.
The bulk of the total money judgment imposed related to the conviction for conspiracy to commit mail fraud regarding misbranded drugs (the “potpourri“). Section 981(a)(1)(C) provides for the forfeiture of “[a]ny propеrty, real or personal, which constitutes or is derived from proceeds traceable to a violation of . . . any offense constituting ‘specified unlawful activity’ (as defined in section 1956(c)(7) of this title), or a conspiracy to commit such offense.”
We note a circuit split has developed on the question of whether Honeycutt applies to criminal forfeitures under
Turning to the differences between the statutes, a material distinction is the lack of a reference to a “person” in
The plain language under
When determining the amount of the money judgment, the district court reasoned that by concentrating on the wholesale costs, the money judgment would be proportional to the gravity of Peithman‘s and Elder‘s offenses. We find no clear error in the district court‘s decision to use the cost of acquiring the “potpourri,” nor in its calculation of the appropriate amount which flowed from the conspiracy to commit mail fraud as to the sale of misbranded drugs. See Prather, 456 F. App‘x at 625 (affirming court‘s imposition of a $41,600 money judgment based on the defendant‘s statement that he sold crack cocaine for 52 weeks and profited in the amount of $800 per week). The fact that the jury did not forfeit Peithman‘s real property, vehicles, or bank accounts does not render the court‘s determination in error. Likewise, the fact that the jury forfeited one of Elder‘s bank accounts and found her corporation, Cornerstone Plaza, guilty of five counts does not render imposition of joint and several liability under
6. Sentencing Guidelines Calculations and Reasonableness of Sentences
We review a district court‘s factual findings pertaining to the calculation of the applicable United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines“) range for clear error and its application of the Guidelines de novo. United States v. Hairy Chin, 850 F.3d 398, 402 (8th Cir. 2017) (quoting United States v. Barker, 556 F.3d
Both Peithman and Elder were sentenced within the Guidelines range as calculated by the district court. A sentence within the Guidelines range is presumptively reasonable. United States v. Washington, 893 F.3d 1076, 1080 (8th Cir. 2018) (quoting United States v. Meadows, 866 F.3d 913, 920 (8th Cir. 2017)). We review a district court‘s refusal to grant a defendant‘s requested downward variance for abuse of discretion. United States v. Jackson, 852 F.3d 764, 777 (8th Cir. 2017). Likewise, we review thе substantive reasonableness of a sentence under the deferential abuse-of-discretion standard. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). “A district court abuses its discretion when it ‘(1) fails to consider a relevant factor that should have received significant weight‘; (2) ‘gives significant weight to an improper or irrelevant factor‘; or (3) ‘considers only the appropriate factors but in weighing those factors commits a clear error of judgment.‘” Id. (quoting United States v. Kane, 552 F.3d 748, 752 (8th Cir. 2009)).
A. Allen Peithman, Jr.‘s Sentence
Peithman argues the district court miscalculated his Guidelines range, erred in failing to consider
The court varied downward two levels, which produced an advisory Guidelines sentencing range of 92 to 115 months. Peithman was sentenced to concurrent 115 month terms of imprisonment on Counts IX, XI, and XII. The court imposed concurrent sentences of 36 months on Counts VIII and X–offenses that carried a statutory maximum imprisonment term of 36 months.
Peithman asserts the court erred when it applied an enhancement under
The Guidelines explain that “[m]anufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant‘s primary or principal uses for the premises, rather than one of the defendant‘s incidental or collateral uses for the premises.”
Peithman also argues the district court erred by applying an obstruction of justice enhancement under
Peithman next claims the district court erred by refusing to give him a two-level downward adjustment for being a minor participant. Peithman was not a minor participant in the offenses. The evidence in the record supports the district court‘s finding that Peithman was as culpable as Elder. There was sufficient evidence for a jury to find Peithman understood the scope and structure of the criminal activity and participated in it. Peithman was ineligible for a minor-role adjustment.
Peithman‘s last claim of error regarding the Guidelines calculation pertains to the structuring conviction. Peithman contends the amount that should have been attributed to him is less than $550,000 due to the period of time he was incarcerated. The structuring conviction played no role in sentencing Peithman because it was grouped with the other convictions. When offenses are grouped, the Guidelines range that produces the highest offense level is used. Peithman argues in the alternative that if the district court calculated the Guidelines range correctly, the district court erred by not granting a more substantial downward variance. Peithman asserts the variance the district court granted “was more form over substance” since the sentence fell within the original Guidelines range of 110 to 137 months. We find the district court acted within its discretion when it varied downward and then imposed a sentence within the reduced Guidelines range that happened to also be within the initial Guidelines range. Finally, Peithman argues the court‘s decision to impose a consecutive sentence on the revocation matter was in error under Any term of imprisonment imposed upon the revocation of supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of probation or supervised release. Section 5G1.3(b) gives the court the authority to adjust a sentence if the court determines a period of imprisonment served on an undischarged imprisonment term will not be credited by the Bureau of Prisons and the sentence for the instant offense is ordered to run concurrently to the remainder of the undischarged term of imprisonment. “[S]ection 5G1.3(b)(2) does not prohibit the district court from exercising its statutory authority to impose a consecutivе sentence.” United States v. Benson, 888 F.3d 1017, 1019 (8th Cir. 2018) (citing United States v. Martinez Rodriguez, 508 F. App‘x 573, 575 (8th Cir. 2013)). The district court did not err when it imposed a consecutive sentence on the federal revocation case. Further, the district court acted within its discretion when it declined to account for the six month state sentence because it found they were separate crimes. See United States v. Mathis, 451 F.3d 939, 941 (8th Cir. 2006) (noting the district court‘s wide discretion to run a federal sentence consecutive to an undischarged state offense). Upon our careful review of the record, we find no error in the calculation of the Guidelines range in Peithman‘s case. The district court did not abuse its discretion when it imposed the sentences it did. Elder argues the district court erred when it based its sentence upon acquitted conduct, in determining the applicable base offense level, in failing to depart or vary from the Guidelines, and in imposing a substantively unreasonable sentence. The district court found Elder‘s base offense level was 24, using the cross-reference to For the same reasons that applied in Peithman‘s case, as discussed in the previous subsection, Elder‘s challenges to the cross-reference and use of the drug quantity table are without merit. Although the jury acquitted Elder of the substantive offenses for distribution of controlled substances, the court may rely on acquitted conduct at sentencing. Roberts, 881 F.3d at 1053. The evidence рresented at trial established that the primary sale of goods at Island Smokes was the sale of “potpourri.” The court properly applied Elder‘s within-Guidelines range sentence is presumptively reasonable. Washington, 893 F.3d at 1080. We find no error by the district court in calculating the Guidelines or applying the Guidelines in Elder‘s case. We find the district court did not abuse its discretion when it refused to grant a more substantial downward For the foregoing reasons, we reverse the money judgment imposed jointly and severally under
III. Conclusion