United States v. Corey Keys , 785 F.3d 1240 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-2397
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Corey Damon Keys
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: April 17, 2015
Filed: May 11, 2015
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Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
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RILEY, Chief Judge.
Corey Keys pled guilty to one count of conspiracy to distribute a substance
containing cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. The
district court1 determined Keys was a career offender and sentenced him to 151
1
The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
months imprisonment. Keys appeals his sentence, claiming he does not qualify as a
career offender and his sentence is substantively unreasonable. With appellate
jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
Keys is a repeat drug trafficker with three prior Iowa state drug convictions.
The first occurred in 2005, when state prosecutors convicted Keys of delivering
cocaine and possessing cocaine with intent to deliver stemming from events in April
and May of 2005. This conviction resulted in a suspended sentence of ten years.
Second, Keys was convicted in 2008 of possessing cocaine with intent to deliver as
a result of events on February 27, 2008, and was sentenced to ten years imprisonment.
Keys’s third drug conviction occurred in 2009, when he was convicted of delivering
cocaine in 2007 and 2008, and was sentenced to twenty years in prison.
Keys was incarcerated at the Iowa Department of Corrections from September
22, 2008, until being paroled on April 30, 2012. Keys admits that, while incarcerated,
he was not directly involved in any drug trafficking or possession. Almost
immediately upon his release from prison, Keys resumed supplying cocaine to
numerous individuals, using the same accomplices and modus operandi as before his
imprisonment. After law enforcement conducted a series of controlled buys, a federal
grand jury indicted Keys, and Keys pled guilty to the charges in this case.
Specifically, Keys admitted in a plea agreement the following:
Starting during or about March 6, 2012, and continuing to on or about
April 24, 2013, the defendant and other persons reached an agreement or
came to an understanding to distribute cocaine. The defendant
voluntarily and intentionally joined in the agreement or understanding
at some later time while it was still in effect.
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At sentencing, Keys objected to the application of United States Sentencing
Guidelines (U.S.S.G. or Guidelines) § 4B1.1(a), claiming he was not a career offender
because his 2008 and 2009 convictions were part of the same conspiracy for which
Keys was charged in this case. The district court rejected Keys’s claims and
determined he was a career offender. After calculating an advisory Guidelines range
of 151 to 188 months (level 29, category VI), the district court sentenced Keys to 151
months imprisonment. Keys appeals.
II. DISCUSSION
A. Career Offender Application
Keys first argues the district court erred in applying the career offender
provision because his convictions in 2008 and 2009 “were part of the relevant conduct
of the offense at bar and thus should be excluded from consideration as prior
convictions.”2 “We review ‘prior sentence’ and ‘relevant conduct’ determinations for
clear error, ‘remembering that such a determination is fact-intensive and well within
the district court’s sentencing expertise and greater familiarity with the factual
record.’” United States v. Hernandez, 712 F.3d 407, 409 (8th Cir. 2013) (quoting
United States v. Boroughf, 649 F.3d 887, 890 (8th Cir. 2011)). We review “de novo
the district court’s interpretation and application of the Sentencing Guidelines.”
United States v. Holmes, 751 F.3d 846, 852 (8th Cir. 2014). “Sentencing guideline
commentary is authoritative unless it violates the Constitution or is inconsistent with
federal law.” United States v. Walterman, 343 F.3d 938, 941 n.3 (8th Cir. 2003)
(citing Stinson v. United States, 508 U.S. 36, 37-38 (1993)).
2
“A defendant is a career offender if (1) the defendant was at least eighteen
years old at the time the defendant committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance offense.” U.S.S.G.
§ 4B1.1(a).
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A prior felony conviction counts under the career offender provision if the
conviction is “counted separately under the provisions of § 4A1.1(a), (b), or (c)” from
the present conviction. U.S.S.G. § 4B1.2(c). Section 4A1.1 provides criminal history
point increases for each “prior sentence.” A “prior sentence means any sentence
previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea
of nolo contendere, for conduct not part of the instant offense.” Id. § 4A1.2(a)(1).
“Conduct that is part of the instant offense means conduct that is relevant conduct to
the instant offense under the provisions of section 1B1.3.” Id. § 4A1.2, cmt. n.1. As
such, if a prior conviction is relevant conduct under U.S.S.G. § 1B1.3, it cannot count
as a prior conviction under the career offender provision.
Keys acknowledges his 2005 conviction is not relevant conduct and counts as
a prior conviction under the career offender provision. Keys therefore qualifies as a
career offender under U.S.S.G. § 4B1.1(a) if either his 2008 conviction or his 2009
conviction counts against him under the Guidelines. If, on the other hand, Keys can
show his 2008 and 2009 convictions were relevant conduct to his present conspiracy
conviction, he would not qualify as a career offender and his criminal history would
have been over scored. Keys has failed to do so.
“‘Conduct underlying a prior conviction is not relevant to the instant offense
if the former conviction was a severable, distinct offense from the latter.’” Hernandez,
712 F.3d at 409 (quoting United States v. Weiland, 284 F.3d 878, 881 (8th Cir.
2002)). “Factors we have consistently applied in reviewing [relevant conduct]
determination[s] include ‘temporal and geographical proximity, common victims,
common scheme, charge in the indictment, and whether the prior conviction is used
to prove the instant offense.’” Id. (quoting United States v. Pinkin, 675 F.3d 1088,
1091 (8th Cir. 2012)); see also United States v. Pepper, 747 F.3d 520, 526 (8th Cir.
2014). While similarities do exist between Keys’s prior offenses and the acts
underlying his current conviction, the evidence convinces us the offenses are
severable and distinct.
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Keys’s current offense occurred three and a half years after his most recent state
offense. The prior offenses and the current offense occurred in different cities and
involved different cocaine. “The convictions resulted from different law enforcement
investigations, were prosecuted by different sovereigns, and depended on proof of
different facts.” Pepper, 747 F.3d at 526. The federal indictment did not mention the
state offenses or the conduct underlying those convictions, and did not involve the
same time period as those offenses. Because the record does not show any continuity
or material overlap between Keys’s offenses, the district court did not clearly err in
finding Keys’s prior offenses were not relevant conduct to his present conspiracy
conviction.
The district court also correctly applied Application Note 8 to U.S.S.G. § 1B1.3
to preclude Keys’s previous convictions from being relevant conduct. Application
Note 8 provides:
For the purposes of subsection (a)(2), offense conduct associated with a
sentence that was imposed prior to the acts or omissions constituting the instant
federal offense (the offense of conviction) is not considered as part of the same
course of conduct or common scheme or plan as the offense of conviction.
U.S.S.G. § 1B1.3, cmt. n.8. The commentary provides an example that describes
Keys’s situation:
The defendant was convicted for the sale of cocaine and sentenced to state
prison. Immediately upon release from prison, he again sold cocaine to the
same person, using the same accomplices and modus operandi. The instant
federal offense (the offense of conviction) charges this latter sale. In this
example, the offense conduct relevant to the state prison sentence is considered
as prior criminal history, not as part of the same course of conduct or common
scheme or plan as the offense of conviction. The prior state prison sentence is
counted under Chapter Four (Criminal History and Criminal Livelihood).
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Id. Application Note 8 plainly provides that prior criminal conduct for which a
sentence was imposed before the conduct charged in the indictment is not relevant
conduct.
Applying Application Note 8 to Keys, his 2008 and 2009 convictions each
resulted in “a sentence that was imposed prior to the acts or omissions constituting the
instant federal offense” because the indictment and plea agreement specified a
conspiracy beginning on or about March 6, 2012. Id. Application Note 8 provides
that Keys’s 2008 and 2009 convictions are not relevant conduct to the present offense
and thus count under the career offender provision. The district court did not err,
clearly or otherwise, in applying the career offender provision.
B. Substantive Reasonableness
Keys also challenges the substantive reasonableness of his sentence, arguing the
district court “erred by refusing to vary downward from the sentencing guidelines
based on the career offender guideline’s racially disparate impact.” We review such
challenges for abuse of discretion. See United States v. Feemster, 572 F.3d 455, 461
(8th Cir. 2009) (en banc). “On review, sentences within the advisory Guidelines range
. . . are presumptively reasonable.” United States v. Solis-Bermudez, 501 F.3d 882,
884 (8th Cir. 2007). “‘A district court abuses its discretion and imposes an
unreasonable sentence when it fails to consider a relevant and significant factor, gives
significant weight to an irrelevant or improper factor, or considers the appropriate
factors but commits a clear error of judgment in weighing those factors.’” United
States v. Robison, 759 F.3d 947, 950-51 (8th Cir. 2014) (quoting United States v.
Kreitinger, 576 F.3d 500, 503 (8th Cir. 2009)).
The district court considered Keys’s assertions and declined to vary from the
Guidelines based on a policy disagreement. The district court was not required to vary
for a policy issue and acted within its discretion when it did not. See United States v.
Coleman, 635 F.3d 380, 383 (8th Cir. 2011); United States v. Barron, 557 F.3d 866,
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871 (8th Cir. 2009). Keys does not allege the district court (1) failed to consider
relevant or significant factors, (2) considered irrelevant or improper factors, or (3)
committed clear error in weighing the factors. Keys has failed to show his sentence
was substantively unreasonable.
III. CONCLUSION
We affirm Keys’s sentence.
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