United States v. Demetris Slaughter

United States Court of Appeals
For the Eighth Circuit
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No. 22-2142
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United States of America
Plaintiff - Appellee
v.
Demetris Slaughter
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: January 13, 2023
Filed: March 21, 2023
[Unpublished]
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Before KELLY, ERICKSON, and STRAS, Circuit Judges.
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PER CURIAM.
Demetris Slaughter appeals from a 57-month within-Guidelines sentence
imposed by the district court1 after he pled guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). Slaughter asserts the district court
1
The Honorable Stephen R. Clark, United States District Judge for the Eastern
District of Missouri, now Chief Judge.
committed procedural error when it: (1) counted state sentences that were
subsequently suspended in his criminal history calculation, and (2) failed to provide
an adequate explanation for the sentence it imposed. Slaughter also contends the
district court abused its discretion when it imposed a substantively unreasonable
alternative sentence. We affirm.
In reviewing a sentencing claim of procedural error, we review a district
court’s factual findings for clear error and its interpretation and application of the
Sentencing Guidelines de novo. United States v. Smith, 983 F.3d 1006, 1008 (8th
Cir. 2020). The Presentence Investigation Report (“PSIR”) assigned a total of 12
points based on four prior Missouri convictions, which placed Slaughter in criminal
history category V. Slaughter objected to counting three of his prior convictions
(nine points), asserting (1) the sentences were suspended approximately 11.5 months
after they were imposed so they did not qualify as three-point offenses under
U.S.S.G. §§ 4A1.1(a) and 4A1.2(e)(1), and (2) the convictions should be assigned
no points under U.S.S.G. § 4A1.2(e)(2) because the sentences were imposed more
than 10 years prior to the date of the instant offense. In response, the government
submitted two documents: (1) a form labeled “RSMO 217.362 Orders of Probation”
signed by the state judge on August 17, 2005, noting Slaughter had completed the
long-term drug program and ordered supervision by the Board of Probation and
Parole for a term of two years (“August Order”), and (2) a document entitled “Order
of Probation” from the State of Missouri, Department of Corrections, Board of
Probation and Parole, signed by the state judge on October 26, 2005, and signed by
Slaughter on October 31, 2005 (“October Order”).
At sentencing, Slaughter argued that it was difficult for the district court to
determine conclusively when the judge intended to suspend his sentences and place
him on probation; therefore, under the rule of lenity, the earlier August Order ought
to apply. The court overruled Slaughter’s objection, finding the plain language of
the October Order is the official document placing Slaughter on probation. Using
the later date, the court found the three convictions were scorable under the
Sentencing Guidelines.
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The district court’s finding that the October Order controls is consistent with
Mo. Rev. Stat. § 217.362.2, which requires completion of a minimum 12-month
treatment program. The Presentence Investigation Report stated that Slaughter
completed a long-term institutional substance abuse treatment program in October
2005. Slaughter did not object to this statement. Thus, at the time of the August
Order, Slaughter had not yet completed the program. The purpose of this order was
to provide the court with the thirty-day notice of successful completion of the
program, as required by Mo. Rev. Stat. § 217.362.3. The district court did not clearly
err in finding the October Order is controlling as to the date Slaughter was placed on
probation. Accordingly, the district court properly calculated Slaughter’s criminal
history under the Sentencing Guidelines. See U.S.S.G. §§ 4A1.1(a), 4A1.2(b).
Slaughter’s remaining two arguments—that the district court failed to
adequately explain his sentence and that it abused its discretion by imposing a
substantively unreasonable alternative sentence—are barred by the appeal waiver in
the parties’ plea agreement. Slaughter expressly waived “all rights to appeal all
sentencing issues other than criminal history” as part of his plea agreement. He has
made no claim that the appeal waiver was not knowingly or voluntarily made. See
United States v. Boroughf, 649 F.3d 887, 890 (8th Cir. 2011) (enforcing a knowing
and voluntary appeal waiver if enforcement will not cause a miscarriage of justice).
No miscarriage of justice is occasioned by applying the waiver to bar Slaughter’s
appeal of these issues. See id. (appeal waiver prohibiting appeal of “all sentencing
issues” except the calculation of criminal history barred challenge to the substantive
reasonableness of a sentence). We dismiss these claims of error.
We affirm the judgment of the district court.
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