710 F. App'x 722
8th Cir.
2018

UNITED STATES of America, Plaintiff-Appellee, v. [REDACTED] PLEDGE, Defendant-Appellant.

No. 16-4130

United States Court of Appeals, Eighth Circuit.

Filed February 9, 2018

881 F.3d 722

category V, but it ultimately found that the resulting guidelines range of 70 to 87 months was insufficient. The court explained that “[w]hether or not Mr. Pledge were scored to be criminal history V or criminal history IV, the Court‘s decision would be exactly the same. This is definitely a case where an upward departure to criminal history category VI is appropriate, and it doesn‘t matter where you start.” With an offense level of 21 and a criminal history category of VI, Pledge‘s guidelines range was 77 to 96 months. Then, following a lengthy discussion of Pledge‘s underrepresented criminal history, the court noted that even if it made a mistake in the computation of Pledge‘s criminal history score or guidelines range, it “would give the very same sentence, and it would be a variance at that point, computing and taking into account the guidelines, but ultimately finding that the other 3553(a) factors weighed more heavily.” The court sentenced Pledge to 96 months’ imprisonment.

On appeal, Pledge again objects to his criminal history determination and the resulting guidelines range. “We review de novo the district court‘s construction and interpretation of the Sentencing Guidelines, but review the district court‘s application of the Guidelines to the facts only for clear error.” United States v. Charles, 209 F.3d 1088, 1089-90 (8th Cir. 2000). “When the guidelines are incorrectly applied, we remand for resentencing unless the error was harmless, such as when the district court would have imposed the same sentence absent the error.” United States v. Idriss, 436 F.3d 946, 951 (8th Cir. 2006). Here, the district court stated repeatedly that it would impose a 96-month sentence whether the original calculation should have resulted in criminal history category IV or V. It offered ample justification for that sentence. Thus, even assuming the court erred, the error was harmless. See United States v. Pate, 854 F.3d 448, 453 (8th Cir. 2017) (“Any error in the classification of this prior conviction was harmless because the district court expressly determined it would have imposed the same sentence.“).

Accordingly, we affirm.

UNITED STATES of America, Plaintiff-Appellee, v. George Eli BROWN, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. George Brown, Jr., Defendant-Appellant.

No. 16-4130 | 16-4130

United States Court of Appeals, Eighth Circuit.

Submitted February 6, 2018 | Filed February 9, 2018

881 F.3d 723

Timothy J. Willis, Assistant U.S. Attorney, U.S. Attorney‘s Office, Eastern District of Missouri, Cape Girardeau, MO, for Plaintiff-Appellee

George E. Brown, Jr., Pro Se

Before WOLLMAN, LOKEN, and COLLOTON, Circuit Judges.

PER CURIAM.

These consolidated appeals arise from George Brown‘s convictions and sentence on drug charges and the revocation of his supervised release on a 2006 conviction. In the first of these consolidated cases, Brown challenges the district court‘s1 denial of his motion to suppress evidence discovered as a result of a traffic stop, as well as the drug-quantity findings used for sentencing. Upon careful review, we affirm the denial of the motion to suppress. See United States v. Chartier, 772 F.3d 539, 543 (8th Cir. 2014) (standards for reviewing denial of suppression motion and underlying findings); see also United States v. Smith, 789 F.3d 923, 929 (8th Cir. 2015) (“great deference” to district court‘s credibility findings); United States v. Stachowiak, 521 F.3d 852, 856 (8th Cir. 2008) (explaining that staleness of information depends on “the context of a specific case and the nature of the crime under investigation“). With respect to the sentencing issue, we enforce the appeal waiver in Brown‘s plea agreement. See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (discussing enforceability of appeal waivers).

In the second of these consolidated cases, Brown challenges the length of his revocation sentence, and he argues that the district court2 improperly denied him counsel at the revocation hearing. As to the length of the revocation sentence, we conclude that Brown‘s sentence does not exceed the statutory maximum, because his underlying offense was a Class A felony at the time of his original conviction. See 18 U.S.C. § 3583(e)(3); 18 U.S.C. § 3559(a)(1) (2006); 21 U.S.C. § 841(b)(1)(B)(iii) 2006); accord United States v. Johnson, 786 F.3d 241, 245 (2d Cir. 2015); United States v. Turlington, 696 F.3d 425, 427-28 (3d Cir. 2012). As to the district court‘s handling of Brown‘s revocation hearing, we conclude that reversal is not warranted because the right to counsel in this context is statutory, not constitutional, see 18 U.S.C. § 3006A(a)(1)(E); United States v. Owen, 854 F.3d 536, 541-42 (8th Cir. 2017), and Brown has not shown that any violation of his statutory right to counsel resulted in prejudice to him, cf. Njoroge v. Holder, 753 F.3d 809, 812 (8th Cir. 2014) (requiring showing of prejudice before reversing for possible violation of statutory right to counsel in immigration context).

The judgments are affirmed.

Notes

1
The Honorable Ronnie L. White, United States District Judge for the Eastern District of Missouri, adopting the report and recommendation of the Honorable Shirley Mensah, United States Magistrate Judge for the Eastern District of Missouri.
2
The Honorable Ronnie L. White, United States District Judge for the Eastern District of Missouri.