United States v. Lonnie Goodrich
754 F.3d 569
8th Cir.
2014
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UNITED STATES оf America, Plaintiff-Appellee v. Lonnie GOODRICH, also known as Danniel Watkins, also known as Verdell Goodrich, Defendant-Appellant.

Nos. 12-2838, 12-3496

United States Court of Appeals, Eighth Circuit.

June 9, 2014

Rehearing and Rehearing En Banc Denied Sept. 11, 2014

569 F.3d 569

Submitted: Feb. 11, 2014.

Maurice, “I believe that you deserve the same punishment as your brother based upon [the fact that] his criminal history is worse than yours, [and] the fact that you were a manager/supervisor.” Because the district court would have sentenced Maurice to thе same sentence even without the government‘s breach of the plea agreement, we cannot say the breach of the plea agreement requires reversal under the plain error standard.

On appeal, Maurice argues for the first time the district court committed procedural sentencing error. Maurice does not contest he deserves a three-levеl enhancement under U.S.S.G. § 3B1.1(b) for being a manager or supervisor. Maurice instead argues Martinus had an equal role in supervising and planning the conspiracy and the district court erred by focusing on Mаurice as a leader but not Martinus as a leader. And, ultimately, because Martinus had a more substantial criminal history, the court erred in sentencing Maurice to the same term of imprisonment as Mаrtinus. Even though Maurice had a lesser criminal history than Martinus, Maurice‘s guidelines range was higher and the district court varied upward less with Maurice than with Martinus. See

(noting a greater variance from the advisory guidelines range requires a greater justification). The district court sufficiently explained the defendant-specific facts relevant to sentencing Maurice and the district court did not plаinly err in sentencing Maurice to the same term of imprisonment as Martinus.

Finally, Maurice contends his sentence of eighty-five months is substantively unreasonable. During the sentencing hearing, the district court notеd Maurice had a substantial criminal history, including a history of fraud crimes and violent felonies; noted Maurice had not been deterred by a number of short sentences; and noted Maurice was a suрervisor of the conspiracy. These are permissible reasons for varying from the guidelines. See 18 U.S.C. § 3553(a). We find no basis for concluding the sentence is unreasonable. See, e.g.,

.

III

Accordingly, we affirm both sentences.

C. Douglas Shull, Columbia, MO, argued, for appellant.

Lonnie Goodrich, Forrest City, AR, pro se.

Philip M. Koppе, Asst. U.S. Atty., Kansas City, MO, argued (Tammy Dickinson, U.S. Atty., David DeTar Newbert, Asst. U.S. Atty., on the brief), for appellee.

Before LOKEN, BYE, and COLLOTON, Circuit Judges.

BYE, Circuit Judge.

Lonnie Goodrich appeals his 210 month sentence ‍‌​‌​‌‌‌​‌‌‌‌​‌‌‌​​​​​‌‌​‌​‌‌​​​​​‌​‌‌‌‌‌‌‌​​​​​​‍imposed by the district court1 after a bench trial in which Goodrich was found guilty of conspiracy to distribute more than fifty grams of cocaine base and his concurrent 210 month sentence imposed by a separate district court2 after another bench triаl in which Goodrich was found guilty of managing a home for the purpose of distributing cocaine base. We affirm the sentences.

I

On March 3, 2010, Goodrich was charged, along with eleven co-defendаnts, with one count of conspiracy to distribute more than fifty grams of a mixture containing a detectable amount of cocaine base (“Goodrich I“). On December 14, 2011, Goodrich was chargеd with managing and controlling a building for the purpose of the use and distribution of cocaine base (“Goodrich II“).

Goodrich was the only defendant to proceed to trial and requested a bench trial in each case. The trial in Goodrich I was held in March of 2012, and the trial in Goodrich II was held in April of 2012. The evidence presented at the trials showed Goodrich was the resident and manager of a drug house and conducted some low-level drug transactions. Goodrich was found guilty in each case.

The sentencing in Goodrich I was held on July 31, 2012. A pre-sentence report (“PSR“) had been prepared for sentencing which incorrectly relied on the 2011 United States Sentencing Guidelines Manual (“U.S.S.G.“). As relevant to this appeal, the district court applied a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(12), which was recommended by the PSR based on the 2011 Guidelines Manual. In a separate calculation, the district court found Goodrich to be a career offender under U.S.S.G. § 4B1.1 and thus calculated a statutory maximum of life, a criminal history category of VI, an applicable offense level of 37, and a guidelines range of 360 months to life. The district court adopted thе PSR and sentenced Goodrich to the below-guidelines term of 210 months of imprisonment.

The sentencing in Goodrich II was held on September 27, 2012. The district court determined Goodrich‘s total offense level as 32, his criminal history category аs VI, and his guidelines range as 210-240 months. The district court sentenced Goodrich to 210 months to be served concurrently with the 210 month sentence in Goodrich I. Goodrich now appeals both sentences.

II

Goodrich argues the district court in Goodrich I erred by failing to apply the Fair Sentencing Act and committed procedural sentencing error, and the ‍‌​‌​‌‌‌​‌‌‌‌​‌‌‌​​​​​‌‌​‌​‌‌​​​​​‌​‌‌‌‌‌‌‌​​​​​​‍district court in Goodrich II committed substantive sеntencing error. When arguments were not raised below, they are reviewed for plain error.

. Under plain error review, it is the defendant‘s burden to prove (1) there was error, (2) that was plain, and (3) affected substantial rights.
(citing
; Fed. R. Crim. Pro. 52(b)). When a defendant appeals a sentence and makes no claim of procedural error, we review the substantive reasonableness of the sentencе under an abuse-of-discretion standard.
.

A

Goodrich first argues the district court in Goodrich I erred by failing to apply the Fair Sentencing Act. The Fair Sentencing Act, which came into effect on August 3, 2010, reduсes the crack-to-powder-cocaine disparity in sentencing. As relevant to this appeal, the Fair Sentencing Act amended 21 U.S.C. § 841 to require a conspiracy of greater than 280 grams, rather than the prior standard of greater than 50 grams, for an imprisonment term of twenty years to life. The Fair Sentencing Act‘s more lenient penalty provisions apply to offenders who committed a crack-cocaine crime before the Fair Sentencing Act came into effect, but were sentenced after.

. Goodrich was sentenced on July 31, 2012, and the Fair Sentencing Act applies to his case, yet Goodrich was indicted and convicted for the pre-Act amounts.

Any error by the district court, however, was not plain. It is insufficient for Goodrich to show the indictment and conviction were “technically defective” in listing 50 grams instead of 280 grams.

. Even if an indictment errs in listing the pre-Fair Sentencing Act amounts, as long as a district court, acting as fact-finder in a bench trial, ‍‌​‌​‌‌‌​‌‌‌‌​‌‌‌​​​​​‌‌​‌​‌‌​​​​​‌​‌‌‌‌‌‌‌​​​​​​‍“explicitly f[inds] beyond a reasonable doubt that the conspiracy involves in excess of [280 grams] of crack cocaine” there is no plain error. Id. at 847. In its written judgment, the district court did not make аn explicit finding on the exact amount of crack-cocaine which was part of the conspiracy, but did note an 8-ball of crack was sold every other day from at least August 2008 to September 2009 and approximately 450 grams were purchased in undercover transactions. These findings by the district court are sufficient explicit findings that Goodrich engaged in a conspiracy involving in еxcess of 280 grams. Any error in failing to apply the new amounts was not plain.

B

Goodrich next argues the district court in Goodrich I committed two errors in calculating the Guidelines range. The district court dеtermined Goodrich was a career offender pursuant to U.S.S.G. § 4B1.1, the statutory maximum of the offense of conviction was life, and, therefore, the offense level was 37. Goodrich argues that undеr the Fair Sentencing Act a conviction for 50 grams of crack would only lead to an offense level of 34 under U.S.S.G. § 4B1.2. However, as discussed above, the district court found Goodrich guilty of conspirаcy to distribute at least 280 grams of crack, which under the Fair Sentencing Act carries a statutory maximum of life in prison, and therefore an offense level of 37 under § 4B1.1. There was no error.

The district court in Goodrich I alsо applied the special offense characteristic found at U.S.S.G. § 2D1.1(b)(12) (“If the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance, incrеase by 2 levels.“). Section 2D1.1(b)(12), however, was not in effect at the time Goodrich committed his crime, and thus is not applicable. See

. Without the § 2D1.1(b)(12) enhancement, Goodrich‘s offense level would havе been 34 instead of 36 as calculated by the district court. However, because the district court properly applied the separate § 4B1.1 enhancement to find an offense level of 37, no plain ‍‌​‌​‌‌‌​‌‌‌‌​‌‌‌​​​​​‌‌​‌​‌‌​​​​​‌​‌‌‌‌‌‌‌​​​​​​‍error occurred because even without the application § 2D1.1(b)(12), Goodrich‘s offense level would have been the same.

C

Goodrich next argues the district court in Goodrich II committed substantive sentencing error because the sentencing errors in Goodrich I necessarily rendered the consideration of the 18 U.S.C. § 3553(a) factors in Goodrich II insufficient. Goodrich does not claim procedural error in Goodrich II and the substantive reasonableness of the sentence is reviewed under an abuse-of-discretion standard.

. There were no sentencing errors in Goodrich I to unduly influence the district court in Goodrich II. Additionally, the district court in Goodrich II properly calculated the guideline range, properly discussed the § 3553(a) factors, and sentenced Goodrich to the bottom of the guidelines range. The district court did not abuse its discretion and the sentence was reasonable. See
(holding a sentence within the advisory guidelines range is presumptively reasonable).

III

Accordingly, we affirm both sentences.3

Notes

1
The Honorable Judge Ortrie D. Smith, United States District Judge for the Western District of Missouri.
2
The Honorable Judge Gary A. Fenner, United States District Judge for the Western District of Missouri.
3
We have examined the other issues raised by Goodrich in his pro se filings but find no other claims ‍‌​‌​‌‌‌​‌‌‌‌​‌‌‌​​​​​‌‌​‌​‌‌​​​​​‌​‌‌‌‌‌‌‌​​​​​​‍merit discussion. Therefore, we affirm those issues without comment. See 8th Cir. R. 47B.
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