United States v. Michael Bailey ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-3395
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Michael Wayne Bailey,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: October 17, 2022
Filed: January 24, 2023
[Unpublished]
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Before COLLOTON, KELLY, and KOBES, Circuit Judges.
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PER CURIAM.
Michael Bailey pleaded guilty to one count of conspiracy to distribute fifty
grams or more of methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846. The statutory
minimum sentence for that offense is 180 months’ imprisonment. Id.§§ 841(b)(1)(A), 851. At sentencing, Bailey argued that he was eligible to be
sentenced without regard to the statutory minimum because he met the criteria in 18
U.S.C. § 3553(f)(1). The district court1 concluded that Bailey did not satisfy
§ 3553(f)(1), but reduced Bailey’s guidelines range from 180 to 153 months’
imprisonment under 18 U.S.C. § 3553(e).
Bailey appeals and argues that the district court misinterpreted § 3553(f)(1) in
denying his request to be sentenced without regard to the statutory minimum. A
district court may sentence a defendant without regard to the statutory minimum if the
court finds that—
(1) the defendant does not have—
(A) more than 4 criminal history points, excluding any criminal
history points resulting from a 1-point offense, as determined
under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing
guidelines; and
(C) a prior 2-point violent offense, as determined under the
sentencing guidelines.
18 U.S.C. § 3553(f)(1).
1
The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
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Although Bailey’s criminal history includes a prior three-point offense for
purposes of subsection (B), he asserts eligibility for a sentence below the statutory
minimum because he does not have the criminal history specified in subsections (A)
and (C). Bailey’s argument is foreclosed by United States v. Pulsifer, 39 F.4th 1018,
1022 (8th Cir. 2022), petition for cert. filed, (U.S. Oct. 7, 2022) (No. 22-340). This
court concluded in Pulsifer that § 3553(f)(1) serves as a checklist, and that the
subsection “is satisfied only when the defendant (A) does not have more than four
criminal history points, (B) does not have a prior three-point offense, and (C) does not
have a prior two-point violent offense.” Id. Because Bailey has a prior three-point
offense, he is ineligible for sentencing without regard to the statutory minimum.
Bailey also argues that the district court failed to consider relevant factors in
reducing his sentence under 18 U.S.C. § 3553(e). He cites the timeliness of his
efforts, limitations imposed by his health conditions, and risks to his personal safety.
But Bailey raises some of these points for the first time on appeal, and he has not
established that the district court erred in refusing to consider any relevant factor
under § 3553(e). See United States v. Massey, 956 F.3d 1076, 1078 (8th Cir. 2020).
The judgment of the district court is affirmed.
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