United States v. Tony Bone ( 2022 )


Menu:
  •                   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 20-3430
    ___________________________
    United States of America
    lllllllllllllllllllllPlaintiff - Appellee
    v.
    Tony Lee Bone
    lllllllllllllllllllllDefendant - Appellant
    ____________
    Appeal from United States District Court
    for the Southern District of Iowa - Central
    ____________
    Submitted: October 18, 2021
    Filed: January 28, 2022
    [Unpublished]
    ____________
    Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
    ____________
    PER CURIAM.
    Tony Bone pleaded guilty to one count of possessing methamphetamine with
    intent to distribute, in violation of 
    21 U.S.C. § 841
    (a)(1) and (b)(1)(C), and to one
    count of possessing a firearm in furtherance of a drug trafficking crime, in violation
    of 
    18 U.S.C. § 924
    (c). The district court1 found him to be a career offender on the
    basis of two prior convictions for controlled-substance conspiracies under Iowa law.
    On appeal, Bone argues that the court erred in concluding that he was a career
    offender. We affirm.
    I. Background
    Using a confidential informant, the police made three methamphetamine
    purchases from Bone at his Des Moines, Iowa residence in September and October
    2019. Thereafter, they obtained a search warrant for his home. The subsequent search
    revealed 42 grams of methamphetamine, a loaded .380 semiautomatic handgun, and
    other items relating to drug distribution. After having his rights read to him, Bone
    admitted to possessing and selling methamphetamine and to owning the handgun.
    Bone pleaded guilty to one count of possessing methamphetamine with intent
    to distribute, in violation of 
    21 U.S.C. § 841
    (a)(1) and (b)(1)(C), and to one count of
    possessing a firearm in furtherance of a drug trafficking crime, in violation of 
    18 U.S.C. § 924
    (c). The presentence report (PSR) attributed 453.6 grams of
    methamphetamine to Bone, correlating to a base offense level of 32 under U.S.S.G.
    § 2D1.1(c)(4). Subtracting three points for acceptance of responsibility resulted in a
    total offense level of 29. The PSR calculated a criminal history category of IV, based
    on nine criminal history points. This put Bone’s Guidelines sentencing range at
    121–151 months’ imprisonment for possession with intent to distribute and 60
    months for possessing a firearm in furtherance of drug trafficking, which together
    resulted in an overall sentencing range of 181–211 months’ imprisonment. Bone was
    designated a career offender, based upon his 2004 and 2009 convictions in Iowa state
    court of conspiracy to manufacture controlled substances. This designation increased
    1
    The Honorable Rebecca Goodgame Ebinger, United States District Judge for
    the Southern District of Iowa.
    -2-
    Bone’s criminal history category to VI and thereby his Guidelines range to 211–248
    months’ imprisonment (151–188 months for the drug offense plus 60 months for the
    firearm offense). This range was further increased pursuant to U.S.S.G.
    § 4B1.1(c)(2)(B) and (c)(3), resulting in a total Guidelines sentencing range of
    262–237 months’ imprisonment.
    Bone objected to being classified as a career offender. He argued that his prior
    convictions for controlled-substance conspiracies were categorically overbroad as
    career-offender predicate offenses under § 4B1.1(c)(2)(B). The district court
    overruled his objection pursuant to Eighth Circuit precedent holding that controlled-
    substance conspiracy convictions constitute valid predicate offenses for determining
    whether a defendant is a career offender. R. Doc. 79, at 9–10 (citing United States v.
    Roberts, 
    975 F.3d 709
     (8th Cir. 2020); United States v. Clayborn, 
    951 F.3d 937
     (8th
    Cir. 2020)).
    Nevertheless, the district court granted Bone a downward variance to 144
    months’ imprisonment as to his drug charge, based upon a number of factors,
    including Bone’s health, his drug addiction, his presentence rehabilitation, and the
    COVID-19 pandemic. The court also imposed the mandatory 60-month consecutive
    sentence for firearm possession, for a total of 204 months’ imprisonment and five
    years’ supervised release.
    II. Discussion
    To qualify as a career offender, a defendant must have “at least two prior felony
    convictions of . . . a controlled substance offense.” U.S.S.G. § 4B1.1(a)(3).
    “[C]ontrolled substance offense” is defined under § 4B1.2(b) to include felony
    offenses for “the manufacture, import, export, distribution, or dispensing of a
    controlled substance (or a counterfeit substance) or the possession of a controlled
    substance (or a counterfeit substance) with intent to manufacture, import, export,
    -3-
    distribute, or dispense.” Application Note 1 to § 4B1.2 states that this term
    “include[s] the offenses of aiding and abetting, conspiring, and attempting to commit
    such offenses.”
    Bone had two prior convictions, in 2004 and 2009, for conspiring to
    manufacture methamphetamine. Both of these offenses were in violation of 
    Iowa Code § 124.401
    (1)(c)(6) and constitute class C felonies. Bone argues that the
    Sentencing Commission exceeded its authority by adding inchoate offenses in a note,
    and therefore his conspiracy convictions may not form the basis for a career-offender
    designation. In making this argument, Bone relies on precedent from other circuits.
    See, e.g., United States v. Havis, 
    927 F.3d 382
     (6th Cir. 2019) (en banc) (per curiam)
    (“[T]he Commission used Application Note 1 to add an offense not listed in the
    guideline. But application notes are to be ‘interpretations of, not additions to, the
    Guidelines themselves.’” (citation omitted)). However, controlling Eighth Circuit
    precedent says otherwise. This court holds that § 124.401(1) constitutes a controlled
    substance offense as defined by § 4B1.2(b). See United States v. Maldonado, 
    864 F.3d 893
    , 897–901 (8th Cir. 2017). Bone also argues that the statute is overbroad
    because it includes inchoate offenses. This claim, however, is foreclosed by this
    court’s recent holding in United States v. Merritt, 
    934 F.3d 809
    , 811 (8th Cir. 2019),
    which reaffirmed the same holding from United States v. Mendoza-Figueroa, 
    65 F.3d 691
    , 694 (8th Cir. 1995) (en banc). And as the Merritt panel explained, “Our panel
    may not overrule a decision of the en banc court.” 934 F.3d at 811; see also United
    States v. Roberts, 
    975 F.3d 709
    , 718 (8th Cir. 2020) (“We have rejected this argument
    repeatedly and are bound by these prior decisions.”). Given our circuit’s controlling
    authority, Bone’s argument fails.
    III. Conclusion
    Accordingly, we affirm the judgment of the district court.
    ______________________________
    -4-
    

Document Info

Docket Number: 20-3430

Filed Date: 1/28/2022

Precedential Status: Non-Precedential

Modified Date: 1/28/2022