Submitted: April 3, 2017
from United States District Court for the Southern District
of Iowa - Des Moines
WOLLMAN, LOKEN, and RILEY, Circuit Judges.
are the consolidated sentencing appeals of two participants
in overlapping drug-distribution conspiracies. Joseph Evenson
argues the district courtshould not have treated him as a career
offender under the advisory United States Sentencing
Guidelines (Guidelines or U.S.S.G.). Miguel Torres Alvarez
argues the district court should have sentenced him below
what the Guidelines recommended, because of his difficult
childhood and mental-health problems. With appellate
jurisdiction under 28 U.S.C. § 1291, we affirm both
Evenson was caught receiving about 167 grams of
methamphetamine from someone under police surveillance. He
pled guilty to conspiring to distribute a controlled
substance. See 21 U.S.C. §§ 841(a)(1),
846. Evenson's presentence investigation report (PSR)
recommended sentencing him as a "career offender"
under Guidelines § 4B1.1(a)(3), which required that he
"ha[d] at least two prior felony convictions of either a
crime of violence or a controlled substance offense."
Evenson initially objected to that determination. The point
turned on whether Evenson's convictions for third-degree
burglary and attempted burglary under Iowa law, see
Iowa Code §§ 713.1, .2, .6A, .6B, counted as crimes
sentencing, Evenson reached an agreement with the government.
If the government recommended reducing Evenson's offense
level by two levels for playing only a minor role in the
crime, see U.S.S.G. § 3B1.2(b), and if the
district court accepted the recommendation, then Evenson
"w[ould] withdraw his objections to the career offender
enhancement." At Evenson's sentencing hearing, the
district court confirmed the parties' resolution of the
career-offender issue. Evenson's lawyer responded:
"In light of the government's agreement to recommend
a downward adjustment reduction for mitigating role, we will
withdraw our objections to the application of the career
offender guideline." The district court adopted the
reduced offense level and sentenced Evenson to the low end of
the resulting Guidelines range, 151 months in prison.
weeks later, the Supreme Court decided Mathis v. United
States, holding an Iowa burglary conviction does not
count as a "violent felony" conviction for purposes
of triggering the Armed Career Criminal Act's
fifteen-year mandatory minimum sentence. See Mathis v.
United States, 579 U.S.,, 136 S.Ct. 2243, 2257 (2016)
(applying 18 U.S.C. § 924(e)). Because we generally
treat "violent felonies" under that statute as
interchangeable with "crimes of violence" under the
Guidelines,  see, e.g., United
States v. Boose, 739 F.3d 1185, 1187 n.1 (8th Cir.
2014), Evenson argues it "follows inexorably" from
Mathis that sentencing him as a career offender was
a mistake. In Evenson's view, we should remand for
resentencing under Federal Rule of Criminal Procedure 52(b),
which authorizes us to correct "plain error that affects
substantial rights . . . even though it was not brought to
the [district] court's attention." See generally
Johnson v. United States, 520 U.S. 461, 466-70 (1997).
error relief is not available in cases of waiver, because
waiving an issue "extinguish[es]" any potential
error and leaves nothing to correct. United States v.
Olano, 507 U.S. 725, 732-33 (1993). This is such a case.
By raising and then withdrawing an objection to classifying
his burglary convictions as crimes of violence, Evenson
demonstrated "the 'intentional relinquishment or
abandonment of'" his right to argue the point.
United States v. Harrison, 393 F.3d 805, 806 (8th
Cir. 2005) (quoting Olano, 507 U.S. at 733);
accord, e.g., United States v.
Thompson, 289 F.3d 524, 526 (8th Cir. 2002). That is, he
recognize that "[w]aiver is different from
forfeiture." Olano, 507 U.S. at 733. But
Evenson did not simply "fail to make the timely
assertion of [the] right." Id. The two Sixth
Circuit decisions Evenson cites, United States v.
Clements, 142 F.App'x 223 (6th Cir. 2005), and
United States v. Stines, 313 F.3d 912 (6th Cir.
2002), though superficially similar to this case, are no
basis for us to hold otherwise. Those cases involved
defendants who, having at first disputed the quantity of
drugs they were responsible for and then dropped those
factual challenges at sentencing, sought on appeal to argue
that letting the district court rather than a jury make the
drug-quantity finding violated their Fifth and Sixth
Amendment rights. See Clements, 142 F.App'x at
224-25, 228; Stines, 313 F.3d at 916-17. The court
found forfeiture, not waiver-and thus undertook plain error
review-emphasizing that the Supreme Court decisions on which
the appeals were based (in Clements, United
States v. Booker, 543 U.S. 220 (2005); in
Stines, Apprendi v. New Jersey, 530 U.S.
466 (2000)) had not been issued yet at the time of
sentencing. See Clements, 142 F.App'x at 229;
Stines, 313 F.3d at 917. That fact was significant
because the court apparently believed a defendant could not
raise a Booker challenge before Booker, or
an Apprendi challenge before Apprendi, so
the timing of the Supreme Court rulings conclusively
established that the arguments the defendants had raised, and
then given up at sentencing, must have been different from
those they were advancing on appeal. See Clements,
142 F.App'x at 229; Stines, 313 F.3d at 917.
did not establish a new sort of challenge in the same way. As
the Supreme Court presented it, the decision simply reflected
the "straightforward" application of decades of
precedent. Mathis, 579 U.S. at, 136 S.Ct. at 2257.
More to the point, the substance of Evenson's
Mathis argument today is the same as what he argued,
without Mathis, in his objection to the PSR-that
"his predicate offenses . . . are not qualifying
'felony crimes of violence' for purposes of U.S.S.G.
section 4B1.1(a)" because "Iowa's burglary
statute is not categorically a crime of
violence." Cf. Clements, 142 F.App'x at
229 (explaining the substantive difference between the
challenge the defendant might have waived at sentencing and
what he argued on appeal); Stines, 313 F.3d at 917.
At most, Mathis strengthens that argument. The
possibility of pursuing such a challenge and benefitting from
a ruling like Mathis is precisely what Evenson
traded away when he agreed to withdraw his objection in
exchange for the certainty of an offense level reduction that
immediately took more than three years off his Guidelines
as the saying goes, opted for the bird in hand at the time of
sentencing. On appeal, he asks this court to give him the two
birds from the bush as well, after someone else caught them.
We simply hold him to his choice.