United States v. Peggy Worthington ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-3382
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Peggy Jean Worthington
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: September 23, 2019
Filed: December 9, 2019
[Unpublished]
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Before SMITH, Chief Judge, WOLLMAN and BEAM, Circuit Judges
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PER CURIAM
Peggy Jean Worthington pleaded guilty to one count of possession with intent
to distribute 500 grams or more of a mixture containing methamphetamine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The district court1 determined that
Worthington qualified as a career offender under § 4B1.1(a)(3) of the U.S. Sentencing
Guidelines (“Guidelines”), because she had one prior felony conviction of a crime of
violence and one prior felony conviction of a controlled substance offense. As a
career offender, Worthington’s advisory Guidelines range sentence was 262 to 327
months’ imprisonment. The district court departed downward under Guidelines
§ 5K1.1 on the basis of Worthington’s substantial assistance, varied downward on the
basis of the sentencing factors set forth in 18 U.S.C. § 3553(a), and sentenced
Worthington to 140 months’ imprisonment. Worthington appeals, arguing that her
2014 Iowa conviction for assault while displaying a dangerous weapon in violation
of Iowa Code § 708.2(3) does not qualify as a crime of violence under Guidelines
§ 4B1.2(a).
Worthington’s argument is foreclosed by our precedent. In United States v.
McGee, we held that assault while displaying a dangerous weapon in violation of
Iowa Code § 708.2(3) categorically qualified as a crime of violence under Guidelines
§ 4B1.2(a)(1). 890 F.3d 730, 736-37 (8th Cir. 2018). Section 4B1.2(a)(1) defines
“crime of violence” to include any felony offense that “has as an element the use,
attempted use, or threatened use of physical force against the person of another . . . .”
The offense of conviction requires “us[ing] or display[ing] a dangerous weapon” in
committing assault, see Iowa Code § 708.2(3), and assault is defined to include
“intentionally point[ing] any firearm toward another, or display[ing] in a threatening
manner any dangerous weapon toward another,” see Iowa Code
§ 708.1. Accordingly, we concluded that the Iowa offense of assault while displaying
a dangerous weapon had as an element the “threatened use of physical force against
the person of another,” § 4B1.2(a)(1), because “displaying an operational weapon
before another in an angry or threatening manner qualifies as a threatened use of
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
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physical force,” 890 F.3d at 736-37 (quoting United States v. Pulliam, 566 F.3d 784,
788 (8th Cir. 2009)). McGee applies here, and the district court thus did not err in
applying the career offender enhancement.
Moreover, the district court stated that it would have imposed the same
sentence, even if the Iowa offense did not constitute a crime of violence. The district
court exercised great care in weighing the § 3553(a) sentencing factors when
imposing Worthington’s sentence. Any error in determining that Worthington was
a career offender under Guidelines § 4B1.1 thus would be harmless. See United
States v. Dace, 842 F.3d 1067, 1069 (8th Cir. 2016) (per curiam) (“[W]hen a district
court’s detailed explanation for the sentence imposed makes ‘clear that the judge
based the sentence he or she selected on factors independent of the Guidelines,’ the
error may be harmless.” (quoting Molina-Martinez v. United States, 136 S. Ct. 1338,
1347 (2016))) .
The judgment is affirmed.
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