United States v. Rodney J. Long

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-1440
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Rodney J. Long, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 27, 1997
Filed: July 9, 1997
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Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.
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PER CURIAM.
While investigating information about possible criminal activity, authorities
knocked on the door of a motel room in which Rodney J. Long and three other persons
were present. Long invited the authorities inside the room, where they observed
methamphetamine, a loaded revolver, and items used in the manufacture of
methamphetamine. Long later pleaded guilty to conspiring to manufacture more than
100 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. After
calculating a Guidelines sentencing range of 121 to 151 months imprisonment, the
district court1 granted the government’s motion to depart downward from the
1
The HONORABLE ORTRIE D. SMITH, United States District Judge for the
Western District of Missouri.
Guidelines and the statutory minimum sentence, and sentenced Long to 60 months
imprisonment and five years supervised release. Long appeals, and we affirm.
Long argues the district court erred in assessing a two-level firearm enhancement
under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (1995) (add two levels if
dangerous weapon, including firearm, was possessed). He also challenges the district
court’s assessment of one criminal history point based on a prior misdemeanor
conviction for which he received a suspended jail sentence, probation, and a fine; Long
claims, as he did below, that the conviction was uncounseled.
Because the departure sentence Long received is below the applicable
Guidelines range, with or without the challenged enhancement and criminal history
point, we conclude his sentence is not reviewable. See United States v. Baker, 64 F.3d
439, 441 (8th Cir. 1995). In any event, his arguments lack merit. First, we find no
clear error in the district court’s finding that it was not clearly improbable the weapon
in the motel room was connected with the offense. See U.S. Sentencing Guidelines
Manual § 2D1.1, comment. (n.3) (1995); United States v. McCracken, 110 F.3d 535,
541 (8th Cir. 1997). Second, even assuming that Long sufficiently carried his burden
of proving the prior conviction was uncounseled, and that the suspended-jail-time
portion of the sentence was thus invalid, see Scott v. Illinois, 440 U.S. 367, 373 (1979);
United States v. White, 529 F.2d 1390, 1394 & n.4 (8th Cir. 1976), the probationary
sentence and monetary fine provided a basis for assessing the criminal history point,
see Nichols v. United States, 511 U.S. 738, 748-49 (1994) ; United States v. Ortega,
94 F.3d 764, 769 (2d Cir. 1996); White, 529 F.2d at 1394.
Accordingly, we affirm.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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