United States v. Javier Morales, Jr. ( 2020 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-1779
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Javier Morales, Jr.
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Des Moines
____________
Submitted: March 9, 2020
Filed: May 28, 2020
[Unpublished]
____________
Before ERICKSON, GRASZ, and KOBES, Circuit Judges.
____________
PER CURIAM.
Javier Morales, Jr., pled guilty to one count of possession with intent to
distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The
district court1 determined Morales was a career offender and sentenced him to 235
months of imprisonment and 5 years of supervised release. This was below the
United States Sentencing Guidelines Manual’s (“Guidelines”) recommended sentence
of 262 to 327 months. On appeal, Morales challenges the district court’s career-
offender determination as well as the substantive reasonableness of his sentence. We
review career-offender determinations de novo and the substantive reasonableness of
a sentence for abuse of discretion. United States v. Boose, 739 F.3d 1185, 1186 (8th
Cir. 2014); United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).
As to his first challenge, Morales qualifies as a career offender if he (1) “was
at least eighteen years old at the time [he] committed the instant offense of
conviction; (2) the instant offense of conviction is a felony that is . . . a controlled
substance offense; and (3) [he] has at least two prior felony convictions of . . . a
controlled substance offense.” U.S.S.G. § 4B1.1(a). He argues his two prior drug
convictions under Iowa Code section 124.401(1), cited by the district court as career-
offender predicates, are not “controlled substance offenses” because they allegedly
impose aiding and abetting liability more broadly than do the Guidelines. See United
States v. Thomas, 886 F.3d 1274, 1276 (8th Cir. 2018) (explaining that to qualify as
a predicate offense, the state statute must not “criminalize more than the Guidelines
definition of ‘controlled substance offense’”). But because this argument is
foreclosed by United States v. Boleyn, we must affirm the district court’s career-
offender determination. 929 F.3d 932, 938–40 (8th Cir. 2019) (concluding “Iowa law
of aiding and abetting liability is substantially equivalent to, not meaningfully broader
than, the standard adopted by federal courts”); United States v. Boykin, 794 F.3d 939,
948 (8th Cir. 2015) (“[O]ne panel is bound by the decision of a prior panel.”) (internal
quotation omitted).
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
-2-
As to Morales’s second challenge, we review the substantive reasonableness
of a sentence by taking “into account the totality of the circumstances, including the
extent of any variance from the Guidelines range.” Feemster, 572 F.3d at 461(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). “[W]here a district court has
sentenced a defendant below the advisory guidelines range, it is nearly inconceivable
that the court abused its discretion in not varying downward still further.” United
States v. McKanry, 628 F.3d 1010, 1022 (8th Cir. 2011) (alteration in original)
(quoting United States v. Moore, 581 F.3d 681, 684 (8th Cir. 2009)).
The district court imposed a sentence 27 months below the low end of the
Guidelines range. Nevertheless, Morales claims his sentence is substantively
unreasonable, arguing the district court’s downward variance was insufficient in light
of the sentencing policies of two other district judges from the neighboring Northern
District of Iowa. See generally United States v. Harry, 313 F. Supp. 3d 969, 971–72,
974 (N.D. Iowa 2018) (Chief Judge Strand adopting Judge Bennett’s policy of
refusing to sentence offenders more harshly based on the purity of the
methamphetamine involved in the crime). Morales’s argument is again foreclosed by
precedent. In United States v. Sharkey, we concluded it was not an abuse of
discretion for the district court to refuse to vary downward based on the same policy
argument Morales advances here. 895 F.3d 1077, 1082 (8th Cir. 2018). Thus,
Morales has shown no abuse of discretion. His below-Guidelines sentence is
substantively reasonable. See McKanry, 628 F.3d at 1022.
The judgment of the district court is affirmed.
______________________________
-3-