United States v. Diana Bustamante ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2373
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Diana Bustamante
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: June 18, 2021
Filed: August 24, 2021
[Unpublished]
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Before LOKEN, KELLY, and ERICKSON, Circuit Judges.
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PER CURIAM.
A warrant search of Diana Bustamante’s residence uncovered 59.58 grams of
actual methamphetamine, $1186 in cash, digital scales, and five cell phones.
Bustamante pleaded guilty to possession with intent to distribute 50 grams or more
of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 851.
The district court1 determined she was a “career offender” based on three prior felony
convictions for “controlled substance” offenses. USSG § 4B1.1(a)(3). The career
offender enhancement and Bustamante’s criminal history category VI resulted in a
total offense level of 34 and an advisory guidelines sentencing range of 262-327
months imprisonment. Varying downward, the court imposed a 200-month sentence.
Bustamante appeals the sentence, arguing that her prior convictions do not qualify as
career offender predicates and that 200 months is a substantively unreasonable
sentence because the district court failed to give sufficient weight to 18 U.S.C.
§ 3553(a) mitigating sentencing factors. We affirm.
1. Bustamante is a career offender under § 4B1.1(a)(3) if she has “at least two
prior felony convictions of either a crime of violence or a controlled substance
offense.” The district court concluded that Bustamante has three prior convictions
for “controlled substance offenses.” A “controlled substance offense” is “an offense
under federal or state law . . . that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance . . . or the possession of a
controlled substance . . . with intent to manufacture, import, export, distribute, or
dispense.” § 4B1.2(b). We review the career offender designation de novo. United
States v. Jefferson, 975 F.3d 700, 706 (8th Cir. 2020), cert. denied, No. 20-6745,
2021 WL 2519291 (June 21, 2021). Prior state law convictions qualify as career
offender predicate offenses when they do not “criminalize[] more than the guidelines
definition of [a] controlled substance offense.” United States v. Boleyn, 929 F.3d 932,
938 (8th Cir. 2019) (quotation omitted), cert. denied, 140 S. Ct. 1138 (2020).
In 2002, Bustamante pleaded guilty to the felony of conspiracy to deliver
methamphetamine in violation of Iowa Code §§ 124.401(1), 706.1(1)(a), and
706.1(1)(b). In 2007 and 2014, she pleaded guilty to felony possession with intent
1
The Honorable John A. Jarvey, Chief Judge of the United States District Court
for the Southern District of Iowa.
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to deliver methamphetamine in violation of Iowa Code § 124.401(1). Bustamante
argues that none of these prior convictions qualify as a controlled substance offense.
Because only two predicate felony convictions are required for career offender status,
we will address only the 2007 and 2014 possession with intent to deliver
convictions.2
Bustamante argues the 2007 and 2014 convictions are not career offender
predicates because Iowa Code § 124.401(1) criminalizes possession with intent to
deliver a simulated controlled substance, whereas USSG § 4B1.2(b) includes only a
controlled substance or a counterfeit substance. This precise argument was rejected
in United States v. Castellanos Muratella, 956 F.3d 541, 543-44 (8th Cir.), cert.
denied, 141 S. Ct. 387 (2020), a case in which the appellant was represented by
attorneys representing Bustamante on this appeal. Bustamante’s brief, filed six
months after our decision in Castellanos Muratella was filed, cites Castellanos
Muratella in arguing that our prior decision in United States v. Ford, 888 F.3d 922,
930 (8th Cir. 2018), cert. denied, 139 S. Ct. 1301 (2019), “was wrong when decided,
it is wrong now . . . . Adherence to Ford as precedent . . . has led to now numerous
further correct [sic?] opinions.” But our opinion in Castellanos Muratella did not
even cite Ford, and Bustamante’s brief did not acknowledge that Castellanos
Muratella is on-point precedent that is binding on our panel. Preserving an issue for
potential en banc review is of course appropriate. But the lack of candor in counsel’s
brief has wasted the panel’s time. We expect better.
2
Bustamante’s argument that the 2002 conspiracy conviction cannot qualify as
a controlled substance offense appears to be foreclosed by our en banc decision in
United States v. Mendoza-Figueroa, which held that conspiracy to commit a
controlled substance offense is itself a controlled substance offense. 65 F.3d 691, 694
(8th Cir. 1995) (en banc), cert. denied, 516 U.S. 1125 (1996); accord United States
v. Merritt, 934 F.3d 809 (8th Cir. 2019), cert. denied, 140 S. Ct. 981 (2020).
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Under Eighth Circuit precedent that is binding on our panel, Bustamante was
properly sentenced as a career offender.
2. Bustamante further argues the district court imposed a substantively
unreasonable 200-month sentence when it failed to give sufficient weight to a variety
of 18 U.S.C. § 3553(a) mitigating factors. We review this issue under a deferential
abuse of discretion standard. United States v. Feemster, 572 F.3d 455, 461 (8th Cir.
2009) (en banc). When the district court has imposed a sentence below the advisory
guidelines range, “it is nearly inconceivable that the court abused its discretion in not
varying downward still further.” Castellanos Muratella, 956 F.3d at 545 (quotation
omitted).
On appeal, Bustamante cites a variety of mitigating factors, focusing in
particular on childhood sexual abuse, a past traumatic brain injury, and her struggles
with methamphetamine addiction. The district court explicitly discussed these factors
and more when it imposed Bustamante’s sentence. The court then applied a 62-
month downward variance from the bottom of the 262-327 month guidelines range.
Given the wide latitude afforded district courts in weighing § 3553(a) factors,
Bustamante’s “disagreement with how the district court weighed the factors does not
demonstrate an abuse of discretion.” United States v. McSmith, 968 F.3d 731, 738
(8th Cir. 2020).
The judgment of the district court is affirmed.
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