United States v. Gary Dwayne Dunning

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1406
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
Gary Dwayne Dunning, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 14, 2005
Filed: December 30, 2005
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Before ARNOLD, BEAM, and RILEY, Circuit Judges.
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PER CURIAM.
Gary Dwayne Dunning (Dunning) appeals the sentence imposed by the district
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court following his plea of guilty to one count of knowingly distributing more than
five grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1). We affirm.
At the sentencing hearing, the district court found Dunning was a career
offender pursuant to U.S.S.G. § 4B1.1, based on his prior convictions for burglary of
a residence and possession of methamphetamine with intent to deliver, and enhanced
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The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.
Dunning’s total offense level by six levels. Dunning had twenty-two criminal history
points establishing a criminal history category of VI. Dunning did not object to the
Presentence Report or its calculations. The district court granted a three-level
reduction in offense level in response to the government’s downward departure
motion.
Because sentencing occurred after the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the district court stated it was
not bound by the Guidelines and considered them advisory. The district court then
sentenced Dunning to 120 months’ imprisonment, twenty months below the low end
of the Guidelines’ 140- to 175-month range.
Dunning appeals, arguing the district court violated his Sixth Amendment right
under Blakely v. Washington, 542 U.S. 296 (2004), and Booker, by finding facts
supporting application of the career offender Guideline rather than submitting those
facts to a jury for determination. We review a challenged sentence for
unreasonableness, judging the sentence in light of the factors in 18 U.S.C. § 3553(a).
Booker, 125 S. Ct. at 767; United States v. Yahnke, 395 F.3d 823, 824 (8th Cir.
2005).
Dunning claims the district court improperly found facts regarding Dunning’s
“propensity for violence and the perceived lack of prison time served.” On the
contrary, the district court merely found Dunning had two prior convictions
supporting application of the career offender Guideline. Dunning does not dispute
the existence of these prior convictions. Booker instructs that a district court need not
submit the fact of a prior conviction to a jury to support a sentence. Booker, 125 S.
Ct. at 756; see also Almendarez-Torres v. United States, 523 U.S. 224 (1998).
Accordingly, there was no Sixth Amendment violation in applying the Guidelines.
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The district court reduced Dunning’s sentence twenty months below the
advisory Guideline range based on its belief the career offender enhancement unfairly
over-penalized Dunning. The district court referenced (1) the “borderline on the drug
amount” and (2) the difference between a Guidelines career offender and an offender
of the statutory Armed Career Criminal Act. 18 U.S.C. § 924(e). Reviewing the
record in light of the sentencing factors in 18 U.S.C. § 3553(a), we conclude the
district court did not commit error and Dunning’s sentence is reasonable. See United
States v. Hadash, 408 F.3d 1080, 1082 (8th Cir. 2005).
For the foregoing reasons, we affirm Dunning’s sentence.
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