United States v. Michelle Thacker

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-1594
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Michelle S. Thacker, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: July 16, 2002
Filed: July 23, 2002
___________
Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and MELLOY, Circuit
Judges.
___________
PER CURIAM.
Michelle Thacker pleaded guilty to conspiring to distribute and to possess with
intent to distribute a mixture or substance containing 500 grams or more of
methamphetamine, in violation of 21 U.S.C. § 846. The district court1 departed from
the 120-121-month Guidelines range, based on the government’s substantial-
assistance motion, and sentenced Thacker to 60 months imprisonment and 5 years
supervised release. On appeal, Thacker argues that the district court erred in
1
The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
assessing a criminal history point for her prior Nebraska sentence (a $100 fine) for
possession of less than one ounce of marijuana, because it was relevant conduct and
because it was excludable under U.S.S.G. § 4A1.2(c).
Thacker’s arguments are unreviewable. Her 60-month sentence is still a
downward departure from the 87-108-month Guidelines range that would have
resulted if she had prevailed on her arguments (assuming Thacker also could have
shown her eligibility for safety-valve relief under U.S.S.G. § 5C1.2). See United
States v. Wyatt, 26 F.3d 863, 864 (8th Cir. 1994) (per curiam). Even if the arguments
were reviewable, we would not conclude that the district court erred in refusing to
find that the marijuana possession was relevant conduct. See United States v.
Davidson, 195 F.3d 402, 409 (8th Cir. 1999), cert. denied, 528 U.S. 1180 (2000).
Further, Thacker’s reliance on section 4A1.2(c) is foreclosed by our opinion in United
States v. Jenkins, 989 F.2d 979-80 (8th Cir. 1993), which only this court sitting en
banc may overrule. See United States v. Goldman, 228 F.3d 942, 944 (8th Cir. 2000),
cert. denied, 531 U.S. 1175 (2001).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2-