United States v. Angelo M. Brown ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-3595
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Angelo M. Brown, also known as Low, * [UNPUBLISHED]
*
Appellant. *
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Submitted: April 7, 1999
Filed: April 13, 1999
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Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
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PER CURIAM.
Angelo M. Brown pleaded guilty to conspiring to distribute, and to possess
with intent to distribute, cocaine base (i.e., “crack cocaine”) and cocaine, in violation
of 21 U.S.C. § 846 and 18 U.S.C. § 2. Over Brown’s objection, the district court1
assigned Brown one criminal history point each for three prior state convictions for
possessing less than one ounce of marijuana. The court then sentenced him to 124
months imprisonment and five years supervised release. On appeal, Brown argues
that his sentence was excessive, and his marijuana-possession convictions should
1
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
have been considered only as character evidence because they were “minor
infractions.” We affirm.
Circuit precedent forecloses any contention that the three marijuana-possession
convictions should not have been counted for purposes of calculating Brown&s
criminal history score merely because they were allegedly minor infractions. See
United States v. Jenkins, 989 F.2d 979, 979-80 (8th Cir. 1993) (defendant’s
convictions for possession of less than one ounce of marijuana in Nebraska state court
were properly included in criminal history score). We also note Brown was either
represented by counsel or waived his right to counsel in each proceeding, and he was
not sentenced to any term of confinement but was only fined. See U.S. Sentencing
Guidelines Manual § 4A1.2, comment. (backg’d) (1998) (uncounseled misdemeanor
sentences where imprisonment was not imposed are to be counted in criminal history
score).
To the extent Brown is arguing that his sentence was so excessive as to violate
the Eighth Amendment, this argument is also without merit. See Neal v. Grammer,
975 F.2d 463, 465 (8th Cir. 1992) (this court narrowly reviews sentence to determine
if it is grossly disproportionate and will not disturb sentence within statutory limit
absent abuse of discretion); cf. United States v. Mendoza, 876 F.2d 639, 640-41 (8th
Cir. 1989) (mandatory minimum penalties for drug offenses do not violate Eighth
Amendment&s prohibition on cruel and unusual punishments).
Accordingly, the judgment is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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