United States v. James Paine

United States Court of Appeals
For the Eighth Circuit
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No. 17-3390
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
James Lewis Paine, also known as James L. Paine
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Council Bluffs
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Submitted: September 25, 2018
Filed: February 7, 2019
[Unpublished]
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Before SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.
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PER CURIAM.
In 2017, James Paine pled guilty to conspiring to distribute methamphetamine.
Over Paine’s objection, the district court1 assigned Paine a criminal history point for
1
The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
a 2015 serious misdemeanor conviction for “[g]athering[] where controlled
substances [are] unlawfully used.” Iowa Code § 124.407 (2015). Paine appeals,
arguing that gathering is similar to the offenses of disorderly conduct and loitering
and therefore should not be counted towards his criminal history pursuant to United
States Sentencing Guidelines (“U.S.S.G.”) § 4A1.2(c). We affirm.
I. Background
In 2017, Paine pled guilty to conspiring to distribute at least 50 grams or more
of methamphetamine and at least 500 grams or more of a mixture or substance
containing methamphetamine. The presentence report assessed Paine two criminal
history points—one for a 2005 conviction for possession of drug paraphernalia and
one for his 2015 serious misdemeanor gathering conviction. The district court
rejected Paine’s argument that the gathering conviction was similar to disorderly
conduct or loitering, offenses that, pursuant to U.S.S.G. § 4A1.2(c), are excluded for
the purposes of calculating criminal history. The district court stated:
In reviewing the statute here and the elements that apply to that
statute and in reviewing the case law that was cited to me[,] . . . I find by
a preponderance of the evidence that the conviction under Iowa Code
Section 124.407 for gathering is not similar to those outlined in USSG
4A1.2(c)(1) or (c)(2).
I find gathering, as described in its elements and as discussed in
the limited case law . . . to be more similar to possession of a controlled
substance or possession of drug paraphernalia than any of the offenses
enumerated by 4A1.2(c)(1) or (c)(2). As such, I find that the defendant
is properly found to be a criminal history category of II.
Had the district court accepted Paine’s argument, Paine would have had a criminal
history category I and would have been eligible for “safety-valve” relief under 18
U.S.C. § 3553(f), which “allows the district court to disregard an applicable statutory
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minimum if certain requirements are met.” United States v. Barrera, 562 F.3d 899,
902 (8th Cir. 2009).
II. Standard of Review
“When reviewing the district court’s imposition of a sentence, we review ‘de
novo the district court’s interpretation and application of the sentencing guidelines
and statutes . . . .’” United States v. Barrientos, 670 F.3d 870, 873 (8th Cir. 2012)
(citation omitted). We first look to see whether the district court committed a
“significant procedural error, such as failing to calculate (or improperly calculating)
the Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). Mis-
calculation of a defendant’s criminal history may constitute a significant procedural
error. Barrientos, 670 F.3d at 873.
III. Discussion
In general, the Guidelines provide that misdemeanors are counted for the
purposes of calculating a defendant’s criminal history score. See U.S.S.G. §§ 4A1.1,
4A1.2. The Guidelines, however, also provide a limited exception to this rule.
Certain listed offenses, and “offenses similar” to them, are only counted if specific
conditions are met. U.S.S.G. § 4A1.2(c)(1). In addition, certain other listed offenses,
and “offenses similar” to them, are never counted. U.S.S.G. § 4A1.2(c)(2). The sole
issue in this case is whether gathering, which is an unlisted offense, is similar to the
listed offenses of disorderly conduct or loitering and thus should not be counted.
Iowa’s gathering statute states:
It is unlawful for any person to sponsor, promote, or aid, or assist
in the sponsoring or promoting of a meeting, gathering, or assemblage
with the knowledge or intent that a controlled substance be there
distributed, used, or possessed, in violation of this chapter.
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Any person who violates this section and where the controlled
substance is any one other than marijuana is guilty of a class “D” felony.
Any person who violates this section, and where the controlled
substance is marijuana only, is guilty of a serious misdemeanor.
Iowa Code § 124.407 (2015).
To determine whether gathering is similar to disorderly conduct or loitering,
the Guidelines direct us to apply the following test:
[T]he court should use a common sense approach that includes
consideration of relevant factors such as (i) a comparison of
punishments imposed for the listed and unlisted offenses; (ii) the
perceived seriousness of the offense as indicated by the level of
punishment; (iii) the elements of the offense; (iv) the level of culpability
involved; and (v) the degree to which the commission of the offense
indicates a likelihood of recurring criminal conduct.
U.S.S.G. § 4A1.2 cmt. n.12.
Serious misdemeanor gathering is not similar to disorderly conduct or loitering.
In terms of punishment and perceived seriousness, gathering is punishable as either
a felony or a serious misdemeanor. Iowa Code § 124.407 (2015). A serious
misdemeanor, which is what Paine was convicted of, is punishable by up to one
year’s imprisonment. Iowa Code § 903.1(1)(b). Paine cites no authority that
suggests disorderly conduct and loitering are punishable by anything more than 30
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days’ imprisonment.2 The significant difference in punishment indicates that
gathering is perceived as a more serious offense.
The elements of the offense, the level of culpability involved, and the
likelihood of recidivism also indicate that serious misdemeanor gathering is not
similar to disorderly conduct or loitering. To be convicted of serious misdemeanor
gathering, a defendant must, at a minimum, assist in promoting an assemblage with
knowledge that marijuana will be possessed. Iowa Code § 124.407 (2015). Thus,
serious misdemeanor gathering has two elements that disorderly conduct and loitering
do not: a drug element and a drug-related scienter element. See United States v.
Millard, 139 F.3d 1200, 1209 (8th Cir. 1998) (“[T]he Iowa [gathering] statute
contains an element of mental culpability directly related to a drug crime . . . .”);
Iowa Supreme Court Bd. of Prof’l Ethics & Conduct v. Sloan, 692 N.W.2d 831, 832
(Iowa 2005) (referring to serious misdemeanor gathering as a “drug offense[]”). The
drug element is significant because it indicates that serious misdemeanor gathering
involves a higher level of culpability and a greater chance of recidivism than
disorderly conduct and loitering. See United States v. Ruacho, 746 F.3d 850, 855
(8th Cir. 2014) (per curiam) (noting that “convictions involving illegal narcotics
correlate strongly to recidivism”); cf. United States v. Foote, 705 F.3d 305, 308 (8th
Cir. 2013) (“Drug possession ‘suggests a more calculating, a more resourceful, and
a more dangerous criminal’ than someone who commits a minor traffic infraction.”
(citation omitted)).
2
Paine cites Council Bluffs, Iowa, Code of Ordinances sections 8.20.020 and
8.48.010 as examples of the offenses of disorderly conduct and loitering. The
government does not object to Paine’s citation of these ordinances. Under these
ordinances, both offenses are punishable by up to 30 days’ imprisonment. Council
Bluffs, Iowa, Code of Ordinances § 8.02.020.
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IV. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
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