United States v. Eric Newman ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-1006
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Eric James Newman
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: December 9, 2019
Filed: March 23, 2020
[Unpublished]
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Before SMITH, Chief Judge, LOKEN and GRASZ, Circuit Judges.
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PER CURIAM.
Eric Newman pleaded guilty to conspiracy to distribute methamphetamine.
During sentencing, the district court1 applied two Guidelines enhancements to his
base offense level, which Newman contests. We affirm.
I. Background
An individual told police that he or she bought methamphetamine from
Newman. The police then used the individual to conduct a controlled buy with
Newman. During the buy, police saw large quantities of methamphetamine through
a camera worn by the buyer. The next day, officers executed a search warrant on
Newman’s residence. They found drugs, drug paraphernalia, and thousands of dollars
in cash, including money from the controlled buy. Newman was arrested and pleaded
guilty to conspiracy to distribute methamphetamine.
During Newman’s sentencing hearing, the district court applied two
enhancements that are at issue on appeal. First, the district court assessed a two-level
enhancement for maintaining a premise for the distribution of drugs. See U.S.S.G.
§ 2D1.1(b)(12). Second, Newman received a career-offender enhancement because
of four prior violations of Iowa Code § 124.401. See U.S.S.G. § 4B1.1(a). The
career-offender enhancement put Newman’s base-offense level at 37. Id.
§ 4B1.1(b)(1). This was ultimately reduced to 34 based on Newman’s acceptance of
responsibility. Newman had a category VI criminal history. Thus, his Guidelines
range was 262 to 327 months’ imprisonment. The district court noted that without the
career-offender enhancement, the Guidelines range would have been 235 to 293
months. Without both enhancements, the range would have been 188 to 235 months.
The district court ultimately sentenced Newman to 200 months. The court noted that
it would have imposed the same sentence even if neither enhancement applied.
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
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Newman filed this appeal, contesting the application of the enhancements. We review
their application de novo. United States v. Eason, 643 F.3d 622, 623 (8th Cir. 2011).
II. Discussion
Newman first argues that he does not qualify as a career offender because his
prior convictions do not count as predicate offenses. Specifically, he argues that “the
Iowa statute underlying all of [his] prior convictions is overbroad” “because Iowa’s
aiding and abetting statute is broader than the generic definition of aiding and
abetting.” Appellant’s Br. at 11. Newman claims that the Iowa statute only requires
knowledge, whereas the federal aiding-and-abetting standard requires a higher mens
rea.
As the government points out, we recently decided that issue. See United States
v. Boleyn, 929 F.3d 932, 936 (8th Cir. 2019) (deciding “whether Iowa’s doctrine of
aiding and abetting liability renders every § 124.401 conviction overly broad”), cert.
denied, No. 19-6671, 2020 WL 872476 (U.S. Feb. 24, 2020). In Boleyn, “we appl[ied]
a categorical approach to determine whether Iowa Code § 124.401 criminalizes more
than the guidelines definition of controlled substance offense.” Id. at 938 (cleaned
up). Assuming that a mere knowledge mens rea would have been overly broad, we
decided “that Iowa law, as determined by the Supreme Court of Iowa, requires more
than mere ‘knowledge’ to convict a defendant of aiding and abetting liability.” Id. at
940. Specifically, we determined that “the Supreme Court of Iowa expressly linked
its law of aiding and abetting liability to the federal standard.” Id. (citing State v. Lott,
255 N.W.2d 105, 108 (Iowa 1977) (quoting United States v. Peoni, 100 F.2d 401, 402
(2d Cir. 1938)), overruled on other grounds by State v. Allen, 633 N.W.2d 752, 756
(Iowa 2001)). Thus, this court found that “each defendant failed to show a realistic
probability that Iowa would apply § 124.401 to conduct that falls outside” of the
federal standard. Boleyn, 929 F.3d at 940.
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Boleyn forecloses Newman’s argument. Newman argues that Iowa Code
§ 124.401 is overbroad because its aiding and abetting mens rea criminalizes more
conduct than the generic standard. As described above, Boleyn disagreed, and its
holding binds this panel. See United States v. Olness, 9 F.3d 716, 717 (8th Cir. 1993)
(“We are bound to follow the decision of another panel, which becomes the law of
the circuit. Only the court en banc may overrule an earlier decision and adopt a
differing rule of law.”). Thus, the district court did not err in applying the
career-offender enhancement.
Moreover, even if Boleyn did not apply, any error was harmless. “An error is
harmless if it is clear from the record that the district court would have given the
defendant the same sentence regardless of which guidelines range applied.” United
States v. Staples, 410 F.3d 484, 492 (8th Cir. 2005). The district court stated that it
would have imposed the same sentence “whether the Court correctly scored the
defendant as a career offender or otherwise based upon . . . the totality of the
considerations under 3553(a).” Sent. Tr. at 70, United States v. Newman, 3:18-cr-39
(S.D. Iowa Dec. 20, 2018), ECF No. 66. This statement makes it clear that the district
court would have given Newman the same sentence without the career-offender
enhancement.
Newman’s second argument challenges the drug-premises enhancement. He
admits, however, that our conclusion on the career-offender enhancement likely
moots this argument because “the career offender Guideline controlled over the
Chapter Two Guideline calculation.” Appellant’s Br. at 9. Newman correctly states
the law. See United States v. Shepard, 462 F.3d 847, 872 (8th Cir. 2006). Here, the
career-offender enhancement required a base offense level of 37. Because of that, any
error in the application of the premises enhancement would not have changed
Newman’s initial offense level. See U.S.S.G. § 4B1.1(b)(1). Therefore, Newman’s
challenge to the premises enhancement is foreclosed.
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Lastly, any error in applying the premises guideline was also harmless. The
district court stated that it “would impose that same 200-month sentence whether or
not that premises adjustment was applied in this case based upon the consideration
of all of the factors set forth in 3553(a) which is driving the sentence.” Sent. Tr. at 70.
As a consequence, it is clear the same sentence would have been imposed without the
enhancement, and therefore any error was harmless. See Staples, 410 F.3d at 492.
III. Conclusion
For the foregoing reasons, we affirm.
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