Unitеd States of America, Plaintiff-Appellee v. David James Cook, Defendant-Appellant.
Nos. 12-1366, 12-1691.
United States Court of Appeals, Eighth Circuit.
Submitted: Oct. 15, 2012. Filed: Oct. 26, 2012.
667
RILEY, Chief Judge, ARNOLD and GRUENDER, Circuit Judges.
Dufresne proposes we should remand to allow the district court to determine whether to reduce his sentence for acceptance of responsibility pursuant to
[c]onduct resulting in an enhancement under
§ 3C1.1 [for obstruction of justice] ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both§§ 3C1.1 and3E1.1 may apply.
III. CONCLUSION
We affirm the district court.
UNITED STATES of America, Plaintiff-Appellee v. David James COOK, Defendant-Appellant.
the sаle of the [M]ustang.” Dufresne is incorrect on this claim.
Lisa D. Kirkpatrick, AUSA, St. Paul, MN, for appellee.
RILEY, Chief Judge, ARNOLD and GRUENDER, Circuit Judges.
RILEY, Chief Judge.
David James Cook pled guilty, in separate proceedings, to (1) conspiracy to possess with intent to distribute oxycodone, in violation of
I. BACKGROUND
A. Factual Background
On January 27, 2011, law enforcement officers, executing a search warrant at Cook‘s home on the Red Lake Indian Reservation, discovered oxycodone pills. Cook identified Joe Williams as his supplier, and later that day, participated in a controlled purchase of oxycodone from Williams using law enforcement funds. Cook kept some of the pills rather than turning them over to the officers. Williams was arrested and subsequently cooperated with law enforcement.
In May 2011, during a night of drinking alcohol with his girlfriend, M.G., Cook banged M.G.‘s head against the hood of a car, fracturing her nose and cheek bone. In June 2011, M.G. obtained a Red Lake Tribal Court Order for Protection against Cook.
B. Procedural History
Separate indictments charged Cook with the drug charge and the assault charge on July 19, 2011.
1. Drug Charge
On October 13, 2011, Cook pled guilty, without a plea agreement, to the drug charge. The Presentence Investigation Report (PSR) recommended increasing Cook‘s offense level based on his career offender status. Cook‘s extensive, often violent, criminal record resulted in 22 criminal history points and a criminal history category of VI. The PSR calculated an advisory United States Sentencing Guidelines (Guidelines or U.S.S.G.) range of 151 to 188 months imprisonment.
At sentencing on January 31, 2012, thе district court adopted, without objection, the factual findings and Guidelines recommendations in the PSR. The district court denied Cook‘s request for a downward variance, sentencing Cook to 165 months imprisonment. The district court acknowledged Cook participated in the controlled purchase, but found Cook “undid [his] chances for a cooperation agreement or [
The district court next discussed Cook‘s “extraordinary” and violent criminal record “to figure out what sort of sentence is sufficient to protect the public,” noting “the past is an indication” of future behavior. The court said it would “ignore” the assault charge, “except that it‘s probably inconsistеnt with accepting responsibility, and it seems to have contributed to the government‘s ... unwillingness ... to make a motion for a downward departure.”
2. Assault Charge
Cook pled guilty to the assault charge on November 14, 2011, pursuant to a written plea agreement. The govеrnment agreed to recommend reducing Cook‘s offense level for acceptance of responsibility according to
On November 30, 2011, Cook sent M.G. a letter saying Cook and M.G. needed to make an “agreement” and outlining the evidence implicating M.G. in the drug case. This letter violated the tribal cоurt order for protection.
The sole issue at sentencing was whether Cook was entitled to a reduction for acceptance of responsibility. Cook admitted sending the letter in violation of the protection order, but claimed the lеtter was not inconsistent with accepting responsibility. Because the district court found Cook violated the protection order, the district court declined to reduce Cook‘s sentence and imposed a within-Guidelines statutory maximum sentencе of 120 months imprisonment, to run concurrently with Cook‘s sentence for the drug charge. After losing his argument for an acceptance of responsibility reduction, Cook did not object to these decisions.
Cook appeals both sentences.
II. DISCUSSION
A. Drug Charge
Cook claims his 165-month sentence for the drug charge was substantively unreasonable and “deprived [him] of due process and fundamental fairness at sentencing.” Cook does not explain or provide any authority or substantive arguments to show how any alleged errors violate due process. Wе therefore limit our discussion to whether Cook‘s sentence is substantively unreasonable as challenged. See United States v. Stanko, 491 F.3d 408, 415 (8th Cir.2007) (citing Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir.2004), and “noting that claims not meaningfully argued in the opening brief are waived“).
We review the substantive reasonablenеss of a sentence for abuse of discretion. See United States v. Struzik, 572 F.3d 484, 487 (8th Cir.2009). “A sentencing court abuses its discretion if it fails to consider a relevant factor that should have received significant weight, gives significant weight to an improper or irrelevant factor, or considers only the appropriate factors but commits a clear error of judgment in weighing those factors.” United States v. Watson, 480 F.3d 1175, 1177 (8th Cir.2007). “[W]e treat [Cook‘s] within-Guidelines sentence as presumptively reasonable.” Struzik, 572 F.3d at 488.
Cook claims the district court erred in finding Cook‘s cooperation was negated by his stealing some of the pills he bought in the government-controlled purchase because (1) the government knew of the theft when Cook pled guilty and was willing at that time to move for a downward departure under
Cook next argues the district court court erred in denying a variance based on the assault charge because the assault was not related to the drug charge and “occurred months later,” when Cook “was not in any relationship with the government.” “[C]ontinued criminal conduct, even if minor and unrelated to the offense of conviction, can make a sentence reduction for acceptance of rеsponsibility inappropriate.” United States v. Ngo, 132 F.3d 1231, 1233 (8th Cir.1997). The district court did not abuse its discretion in considering this assault charge.
Cook also contends the district “court‘s emphasis on [Cook‘s] extensive criminal history” impermissibly double-counted that history because the district cоurt already used Cook‘s criminal history to increase Cook‘s offense level based on his career offender status. We review this issue for plain error because Cook did not raise it below. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc). Even if the district court double-countеd Cook‘s criminal history, doing so was permissible because (1) “a court may consider a defendant‘s criminal history [under
Finally, Cook claims the district court “[c]reated an unwarranted and unjustified disparity between Williams’ probationary sentence and Cook‘s mid-range sentence of 165 months.” Williams, with a criminal history category of I, pled guilty to conspiracy to possess with intent to distribute oxycodone. The district court granted the government‘s motion to reduce Williams’ sentence for acceptance of responsibility pursuant to
A distriсt court does not abuse its discretion in sentencing co-defendants differently “when there are ‘legitimate differences’ between” them. United States v. Davis-Bey, 605 F.3d 479, 483 (8th Cir.2010) (quoting Watson, 480 F.3d at 1178). The difference between Cook‘s category VI criminal history and status as a career оffender and Williams’ category I criminal history, as well as the government‘s motion in Williams’ case for a downward departure pursuant to
Cook‘s sentence for the drug charge is not substantively unreasonable.
Cook argues the district court procedurally erred in sentencing him to 120 months imprisonment on the assault charge because (1) Cook‘s plea agreement required the district court to sentence Cook to between 84 and 105 months imprisonment; or alternatively, (2) the district court should have reduced Cook‘s sentence for acceptance of responsibility. We rеview these arguments for plain error because Cook did not raise them in the district court. See United States v. Molnar, 590 F.3d 912, 914 (8th Cir.2010).
Even if we assume the district court plainly erred, we affirm because any error did not affect Cook‘s substantial rights. See id. at 915 (explaining the standard of review); cf. United States v. Olunloyo, 10 F.3d 578, 581 (8th Cir.1993) (deciding an alleged sentencing еrror did not prejudice a defendant subject to a longer, concurrent sentence).
III. CONCLUSION
Because the district court did not abuse its discretion or otherwise err, we affirm Cook‘s sentences.