United States v. Devord Frank Allen , 809 F.3d 1049 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-1179
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Devord Frank Allen
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: November 20, 2015
Filed: January 12, 2016
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Before SMITH, BYE, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Devord Frank Allen pled guilty to conspiracy to possess with intent to
distribute (a) at least 5 kilograms of a mixture and substance containing cocaine, and
(b) at least 28 grams of a mixture and substance containing cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(a) and 846. These offenses commenced in
September 2013. He appeals the district court’s1 Career Offender finding and the
overall substantive reasonableness of his sentence. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.
This court reviews the district court’s application of the Sentencing Guidelines
de novo and its factual findings for clear error. United States v. Woodard, 694 F.3d
950, 953 (8th Cir. 2012). This court first reviews whether the district court
committed a significant procedural error, such as a failure to properly calculate the
Guidelines range. United States v. Woods, 670 F.3d 883, 886 (8th Cir. 2012). If
there is no procedural error, this court reviews the substantive reasonableness of the
sentence for abuse of discretion. United States v. Vaughn, 519 F.3d 802, 805 (8th
Cir. 2008).
To be a career offender, a defendant must have (among other requirements) at
least two prior felony convictions of either a crime of violence or a controlled
substance offense. U.S.S.G. §4B1.1. The Guidelines limit the applicable time period
for the convictions to “[a]ny prior sentence of imprisonment exceeding one year and
one month that was imposed within fifteen years of the defendant’s commencement
of the instant offense,” or “any prior sentence of imprisonment exceeding one year
and one month, whenever imposed, that resulted in the defendant being incarcerated
during any part of such fifteen-year period.” §4A1.2(e)(1).
In 1992, for possessing with intent to distribute cocaine, Allen was sentenced
to 78 months’ imprisonment and four years of supervised release. In 2001, Allen was
again convicted for selling a controlled substance. His supervised release was
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
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revoked and he served an additional 12 months in custody for the 1992 conviction.
Relying on Note 11 in the commentary to section 4A1.2, Allen contends that the
district court should not have counted the 1992 conviction as a prior felony under
section 4B1.1. He specifically argues that the additional 12 months he served upon
revocation should not be counted for Career Offender purposes.
The Guidelines do not support Allen’s position. The second clause of section
4A1.2(e)(1) says to “count any prior sentence of imprisonment exceeding one year
and one month, whenever imposed, that resulted in the defendant being incarcerated
during any part of such fifteen-year period.” Allen’s sentence for his 1992 crime
exceeded one year and one month, and resulted in incarceration during the fifteen-
year period before his current offense. See, e.g., United States v. Van Anh, 523 F.3d
43, 60-61 (1st Cir. 2008) (finding second clause of 4A1.2(e)(1) allowed district court
to use prior sentence when only the additional year of incarceration from parole
violation was within 15 years of current offense); United States v. Semsak, 336 F.3d
1123, 1128 (9th Cir. 2003) (“Note 11 addresses only the points assigned due to the
length of sentences, not the recency of the sentences.”). See also United States v.
Simms, 695 F.3d 863, 865 (8th Cir. 2012) (affirming use of incarceration from
probation revocation to make prior conviction fall within 15 years of instant offense);
United States v. Patillar, 595 F.3d 1138, 1141(10th Cir. 2010) (“If a defendant’s
probation was revoked and his total term of imprisonment exceeded one year and one
month, the ‘date of last release from incarceration on such sentence’ determines
whether his prior conviction falls within § 4A1.2(e)(1)’s window.”).
The district court did not abuse its discretion in sentencing Allen to 202
months’ imprisonment. Considering the relevant 18 U.S.C. § 3553(a) factors, the
district court varied downward from the applicable 262-327 month advisory range.
“[W]here a district court has sentenced a defendant below the advisory guidelines
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range, it is nearly inconceivable that the court abused its discretion in not varying
downward still further.” United States v. Black, 670 F.3d 877, 882 (8th Cir. 2012).
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The judgment is affirmed.
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