United States v. Coolidge Lee Durham , 11 F. App'x 648 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-2144
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Coolidge Lee Durham, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 5, 2001
Filed: April 10, 2001
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Before HANSEN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
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PER CURIAM.
After Coolidge Lee Durham pleaded guilty to distributing crack cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), the district court1 determined
Durham was a career offender and imposed a sentence of 180 months imprisonment--
consecutive to an undischarged Iowa sentence Durham was serving for forgery--and
5 years supervised release. He appeals his sentence, and we affirm.
1
The Honorable Michael J. Melloy, United States District Judge for the Northern
District of Iowa.
Durham first argues that the district court erred by failing to consider all the
required factors before deciding to impose his federal sentence consecutive to the
undischarged Iowa sentence. This argument is belied by the record. The court noted
the minor nature of Durham’s instant offense (involving 1-2 grams of crack), his long
history of criminal activity, the severity of his prior crimes, his rate of recidivism, the
fact that the court’s sentence would keep him imprisoned until he was nearly 60 years
old, the time remaining on the Iowa sentence, his need for substance-abuse treatment,
and the court’s belief that a shorter consecutive sentence (i.e., 8 months below the top
of the applicable Guidelines range) would reflect an incremental punishment better than
a longer concurrent sentence. We conclude the court properly applied U.S.S.G.
§ 5G1.3(c), p.s. See United States v. Lange, 146 F.3d 555, 556 (8th Cir. 1998)
(reviewing application of § 5G1.3(c) de novo); U.S.S.G. § 5G1.3, comment. (n.3)
(describing factors).
Durham next argues that the court double-counted his prior convictions by taking
them into account in assigning him career-offender status, and then again when
imposing the consecutive sentence. We review this argument, raised for the first time
on appeal, only for plain error, see United States v. Montanye, 996 F.2d 190, 192 (8th
Cir. 1993) (en banc), and conclude no plain error occurred here, see United States v.
Hipenbecker, 115 F.3d 581, 583 (8th Cir. 1997) (explaining what constitutes
impermissible double-counting). The Commission directed district courts to consider
a defendant’s criminal history under both sections 4B1.1. and 5G1.3, which concern
separate sentencing notions. See U.S.S.G. §§ 4B1.1 (career-offender status is based
on prior felony convictions), 5G1.3, comment. (n.3) (directing sentencing court to
consider, inter alia, factors enumerated in 18 U.S.C. § 3553(a), which include
defendant’s history).
Finally, citing United States v. Brewer, 23 F.3d 1317, 1321-22 (8th Cir. 1994),
Durham complains that the district court improperly speculated about the date he would
be discharged from his Iowa sentence. Durham’s reliance on Brewer is misguided. In
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Brewer, we held that the district court erred in making an “educated guess” as to the
date Brewer would be released on his undischarged state sentence because section
5G1.3 commentary at that time required district courts to impose a reasonable
incremental combined punishment, as would be imposed if the undischarged sentence
were treated as a federal sentence imposed at the same time as the sentence for the
instant offense. See Brewer, 23 F.3d at 1320. The commentary to section 5G1.3(c)
has since been changed, however, and district courts are no longer required to make
such a determination. Further, Durham did not contest the PSR’s finding as to his
discharge date, and in fact reaffirmed it at sentencing. See United States v. Beatty, 9
F.3d 686, 690 (8th Cir. 1993) (district court may accept as true unobjected-to portions
of PSR); United States v. Dailey, 918 F.2d 747, 748 (8th Cir. 1990) (this court may
consider as waived issues to which parties stipulated at sentencing).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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