736 F.3d 783
8th Cir.
2013

UNITED STATES of America, Plaintiff-Appellee v. Milo Vareen DAVIS, Defendant-Appellant.

No. 11-3189

United States Court of Appeals, Eighth Circuit.

Nov. 29, 2013.

Rehearing and Rehearing En Banc Denied Jan. 30, 2014.

783

Submitted: Oct. 22, 2013. * Judge Kelly did not participate in the consideration or decision of this matter.

C. Age

The Policy requires Liberty to consider an employee‘s age in determining whether the employee is reasonably fitted for an occupation. Gerhardt was fifty-two years old when her long-term disability benefits were terminated. Gerhardt argues that Liberty failed to consider her age, either before or after remand, and thus abused its discretion. Gerhardt acknowledges, however, that in the benefit-termination letters Liberty sent her prior to remand, Liberty indicated that it had considered her age in evaluating her claim. Furthermore, Gerhardt‘s age was referred to in most of the reports issued by the reviewing physicians and vocational consultants both before and after remand. In light of this evidence, Gerhardt has not established that Liberty ignored her age when it terminated its payment of her long-term disability benefits.

III. Conclusion

Gerhardt has not established that Liberty entirely ignored relevant evidence or that Liberty‘s decision to terminate its payment of long-term disability benefits was otherwise unreasonable. The record reflects that Liberty‘s decision to terminate benefits was supported by substantial evidence and thus did not constitute an abuse of discretion.

The judgment is affirmed.

Clemens A. Erdahl, argued, Cedar Rapids, IA, for Appellant.

Teresa Baumann, AUSA, argued, Cedar Rapids, IA, for Appellee.

Before RILEY, Chief Judge, BYE and MELLOY, Circuit Judges.

RILEY, Chief Judge.

This case is before us on remand from the United States Supreme Court. On August 22, 2012, our court affirmed Milo Vareen Davis‘s convictions and sentences for conspiring to distribute cocaine base and cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(B), 846, and 851, and for money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2. See United States v. Davis, 690 F.3d 912, 917-18, 929 (8th Cir. 2012). In affirming Davis‘s sentence, we concluded any error the district court1 made in failing to apply retroactively the Fair Sentencing Act of 2010 (FSA)2, Pub. L. No. 111-220, 124 Stat. 2372, was harmless given the basis for Davis‘s sentence. See Davis, 690 F.3d at 928-29 (discussing Dorsey v. United States, 567 U.S. 260, 132 S.Ct. 2321, 2326, 183 L.Ed.2d 250 (2012) (holding “the new, more lenient mandatory minimum provisions” of the FSA apply to pre-FSA offenders)).3

Davis filed a petition for writ of certiorari. On June 24, 2013, the Supreme Court granted certiorari, vacated our judgment, and remanded for reconsideration in light of Alleyne v. United States, 570 U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). See Davis v. United States, — U.S. —, 133 S.Ct. 2852, 186 L.Ed.2d 903 (2013). In Alleyne, the Supreme Court held the Sixth Amendment of the U.S. Constitution requires a jury to find beyond a reasonable doubt any fact that increases a mandatory minimum sentence. See Alleyne, 570 U.S. at —, 133 S.Ct. at 2162-63.

Having reconsidered Davis‘s appeal as directed by the Supreme Court, we again affirm the district court‘s judgment and reinstate all but Part II.F. of our prior opinion.4 See Davis, 690 F.3d at 928-29. Any errors the district court committed with respect to Davis‘s sentence are harmless under the circumstances of this case.5

See Fed.R.Crim.P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.“).

A jury convicted Davis of conspiring to distribute drugs and of money laundering. Specifically, the jury determined Davis conspired to distribute “50 grams or more of cocaine base” and “500 grams or more of a mixture or substance containing a detectable amount of cocaine,” in each case the maximum amount specified on the verdict form. Based on the jury‘s quantity findings, the district court—though consistent with the law at the time—erroneously advised Davis at sentencing that he was subject to a mandatory minimum of twenty years imprisonment.

Notwithstanding Davis‘s argument to the contrary, the district court‘s error did not affect Davis‘s substantial rights. In calculating Davis‘s advisory United States Sentencing Guidelines (U.S.S.G.) range,

[t]he district court found Davis responsible for 5,163.06 grams of crack and 3,649.15 grams of powder cocaine, which resulted in an adjusted offense level of 36. See U.S.S.G. § 2D1.1. Because the adjusted offense level of 40 for the money laundering conviction was higher, the district court applied that level to both counts, determining Davis was subject to an advisory Guidelines range of 360 months to life imprisonment for his conspiracy conviction (level 40, category IV). See U.S.S.G. § 3D1.3(a) (explaining the offense level that applies to a group of closely related offenses is “the highest offense level of the counts in the [g]roup“).

Davis, 690 F.3d at 928-29. Closely analyzing the 18 U.S.C. § 3553(a) sentencing factors, the district court found “a basis to go ... above the low end of the advisory guideline range of 360 months” to life but “decline[d] to do so” and concluded a 360-month sentence was “supported by the evidence[] and ... sufficient but not greater than necessary to achieve the goals of sentencing” regardless of the application of the FSA. Davis‘s sentence was not based on the twenty-year mandatory minimum.

Because any Alleyne error in this case is harmless, we affirm.

Notes

1
The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.
2
The FSA increased the threshold quantities of cocaine base necessary to trigger statutory mandatory minimums under 21 U.S.C. § 841(b)(1). See FSA § 2.
3
The government concedes “[u]nder the FSA and post-Dorsey, the jury‘s [drug-quantity] finding places [Davis] under 21 U.S.C. § 841(b)(1)(B) for a statutory range of 10 years’ to life imprisonment.”
4
Our observation in Davis that “‘a district court may impose a sentence based on a drug quantity determination greater than that found by the jury so long as the sentence does not exceed the statutory maximum of the convicted offense and the district court‘s calculation is supported by sufficient evidence[,] even where the district court‘s finding subjects a defendant to a lengthier mandatory minimum sentence than that which would be applicable based solely on the jury‘s quantity determination,’ Davis, 690 F.3d at 928 (quoting United States v. Webb, 545 F.3d 673, 677 (8th Cir. 2008) (internal citations omitted)), is no longer correct according to Alleyne, 570 U.S. at —, 133 S.Ct. at 2155.
5
The government questions whether Davis “failed to preserve an objection, thereby forfeiting his Alleyne claim” and subjecting his claim to plain-error review under Fed. R. Crim. P. 52(b). We need not address that issue in this appeal. See United States v. Anderson, 236 F.3d 427, 429 n. 3 (8th Cir. 2001) (per curiam) (“Because we conclude that the ... error does not warrant reversal under harmless-error analysis, we need not decide whether the more stringent plain-error standard of review would apply to this case.“).
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