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United States v. Evenson

United States Court of Appeals, Eighth Circuit

July 28, 2017

United States of America Plaintiff- Appellee
v.
Joseph Michael Evenson, also known as Joseph Anderson Evenson Defendant-Appellant United States of America Plaintiff- Appellee
v.
Miguel Angel Torres Alvarez Defendant-Appellant

          Submitted: April 3, 2017

         Appeals from United States District Court for the Southern District of Iowa - Des Moines

          Before WOLLMAN, LOKEN, and RILEY, Circuit Judges.

          RILEY, Circuit Judge.

         These are the consolidated sentencing appeals of two participants in overlapping drug-distribution conspiracies. Joseph Evenson argues the district court[1]should 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 sentences.

         I. EVENSON

         Joseph 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 of violence.[2]

          Before 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.

         Two 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, [3] 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).

         Plain 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 waived it.

         We 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.

         Mathis 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."[4] 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 range.

         Evenson, 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.

          II.TO ...


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