United States v. Wesley Schmelzer ( 2018 )


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  •                 United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 17-2445
    ___________________________
    United States of America
    lllllllllllllllllllllPlaintiff - Appellee
    v.
    Wesley Schmelzer
    lllllllllllllllllllllDefendant - Appellant
    ____________
    Appeal from United States District Court
    for the Northern District of Iowa - Cedar Rapids
    ____________
    Submitted: May 18, 2018
    Filed: August 27, 2018
    [Unpublished]
    ____________
    Before WOLLMAN, BENTON, and STRAS, Circuit Judges.
    ____________
    PER CURIAM.
    Wesley Schmelzer pleaded guilty to possession with intent to distribute a
    controlled substance in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). After
    determining that Schmelzer was a career offender under United States Sentencing
    Guidelines (U.S.S.G. or Guidelines) § 4B1.1, based on what it found to be six
    predicate offenses, the district court1 sentenced him to 235 months’ imprisonment, to
    be followed by a five-year term of supervised release. Schmelzer alleges procedural
    error in his sentence and challenges its substantive reasonableness. We affirm.
    The probation office’s presentence report (PSR) recommended that Schmelzer
    be categorized as a career offender based on his: (1) March 2002 conviction for
    delivery of a controlled substance, (2) April 2002 conviction for possession of
    cocaine with intent to deliver, (3) January 2010 conviction for possession of precursor
    products used to manufacture a controlled substance (possession of precursors), (4)
    March 2010 conviction for possession of precursors, (5) May 2010 conviction for
    possession of precursors, and (6) March 2013 conviction for domestic assault causing
    bodily injury (strangulation). Schmelzer did not object to his career offender status
    or to the characterization of the six offenses as predicate offenses. Accordingly, the
    PSR determined that Schmelzer had a total offense level of 31 and a criminal history
    category of IV, resulting in an advisory Guidelines range of 188 to 235 months’
    imprisonment.
    Schmelzer filed a motion for downward variance, which the district court
    denied. In imposing sentence, the district court stated that Schmelzer had a
    “[s]ignificant and very serious criminal history” and is “in the truest sense a career
    criminal, a career offender.” The district court also noted that Schmelzer had
    “multiple prior convictions for burglary, assaults, multiple domestic abuse assaults,
    theft, possession of controlled substance, felony delivery of controlled substances,
    felony possession of cocaine with intent to deliver, escape, . . . 3 felony possessions
    of precursors, [and] harassment.” It stated that Schmelzer “was on state paper when
    he committed this offense” and that he had six predicate offenses in support of his
    career offender status, which did not take into account a “number of serious
    1
    The Honorable Linda R. Reade, United States District Judge for the Northern
    District of Iowa.
    -2-
    convictions” from when he was younger, including third-degree burglary, theft,
    multiple assaults, multiple interferences with official acts, multiple instances of
    operating a motor vehicle without a license, and public intoxication. The district
    court further added that it had “carefully considered each and every factor under 18
    United States Code Section 3553(a)” and that even if Schmelzer were not found to
    be a career offender, it “would depart or vary upward to . . . 235 months, the top of
    the advisory guidelines, based on [Schmelzer’s] entire record;” the seriousness of his
    criminal history; his recidivism; his lack of respect for the law and others; the need
    to provide just punishment, to afford adequate protection, and to protect the public
    from further crimes.
    “In reviewing a challenge to a sentence, we must first ensure that the district
    court committed no significant procedural error.” United States v. Timberlake, 
    679 F.3d 1008
    , 1011 (8th Cir. 2012) (internal quotation omitted). “If we discover no
    procedural error, we then consider the substantive reasonableness of the sentence
    imposed under a deferential abuse-of-discretion standard.” 
    Id. Under Guidelines
    § 4B1.1(a), a defendant may be sentenced as a career
    offender if (1) he “was at least eighteen years old at the time [he] committed the
    instant offense of conviction; (2) the instant offense of conviction is either a crime of
    violence or a controlled substance offense; and (3) the defendant has at least two prior
    felony convictions of either a crime of violence or a controlled substance offense.”
    As relevant here, the term “controlled substance offense” is defined as any state or
    federal offense that is punishable by more than one year imprisonment and “prohibits
    the manufacture, import, export, distribution, or dispensing of a controlled substance
    . . . or possession of a controlled substance . . . with intent to manufacture, import,
    export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). Schmelzer concedes that the
    district court correctly sentenced him as a career offender based on his 2002 delivery
    of a controlled substance conviction, his 2002 possession of cocaine with intent to
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    deliver conviction, and his 2013 domestic abuse involving strangulation conviction.
    Schmelzer instead argues the district court committed procedural error in
    considering his three convictions for possession of precursors as predicate offenses
    under Guidelines §§ 4B1.1 and 4B1.2. He contends that the statute under which he
    was convicted, Iowa Code § 124.401(4), criminalizes conduct that is outside the
    Guidelines definition of a “controlled substance offense.” We need not decide this
    issue, however, because even if Schmelzer’s possession of precursor offenses were
    disregarded, he nonetheless would qualify as a career offender based on his two
    uncontested controlled substance offenses and his one uncontested crime of violence
    offense. Accordingly, any error in the district court’s determination that he had six
    predicate offenses—instead of three—was harmless.
    Schmelzer also contends that the district court imposed a substantively
    unreasonable sentence by failing to appropriately weigh the sentencing factors set
    forth in 18 U.S.C. § 3553(a). He argues that the district court placed too much weight
    on his criminal history and excluded from its consideration other relevant § 3553(a)
    factors. We disagree. In addition to expressly stating that it had considered each of
    the § 3553(a) factors, the district court considered Schmelzer’s age, family, education,
    and employment. It acknowledged his father-figure role for his fiancée’s child and
    his assertion that he has mental health issues. Against those factors, however, and as
    noted above, the district court weighed Schmelzer’s lengthy criminal history, his
    recidivism, the need to provide just punishment, and the need to protect the public
    from Schmelzer’s further crimes. The district court also noted that Schmelzer lacked
    a period of sobriety sufficient to enable mental health professionals to accurately
    diagnose the extent of any serious mental illness. The district court’s thorough
    consideration of the § 3553(a) factors satisfies us that it did not abuse its discretion
    in sentencing Schmelzer as it did. See United States v. Gasaway, 
    684 F.3d 804
    , 808
    (8th Cir. 2012) (holding that the district court may balance the § 3553(a) factors as
    it deems appropriate).
    -4-
    The sentence is affirmed. We grant counsel’s motion for leave to withdraw.
    We deny Schmelzer’s motions to strike the brief prepared by counsel and for leave
    to file a supplemental brief.
    ______________________________
    -5-
    

Document Info

Docket Number: 17-2445

Filed Date: 8/27/2018

Precedential Status: Non-Precedential

Modified Date: 4/18/2021