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United States v. Kemp

United States Court of Appeals, Eighth Circuit

November 16, 2018

United States of America Plaintiff- Appellee
Bobby Joe Kemp Defendant-Appellant

          Submitted: September 24, 2018

          Appeal from United States District Court for the Eastern District of Missouri - Cape Girardeau

          Before WOLLMAN, KELLY, and ERICKSON, Circuit Judges.

          ERICKSON, Circuit Judge.

         Bobby Joe Kemp appeals the sentences imposed after his Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), conviction was vacated by the district court[1] pursuant to Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243 (2016). The district court[2] re-sentenced Kemp on both the ACCA conviction and his drug trafficking conviction. Kemp argues that the sentences imposed at the re-sentencing hearing were procedurally unreasonable because of a miscalculation of the applicable United States Sentencing Guidelines ("USSG" or "Guidelines") range. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

         I. Background

         On November 26, 2013, Kemp appeared before the district court for sentencing on two offenses: conspiracy to distribute at least 500 grams of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846 (Count I); and felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) (Count II). Because of the quantity of methamphetamine involved, the penalties for Count I included a mandatory minimum term of imprisonment of 10 years. 21 U.S.C. § 841(b)(1)(A). Due to Kemp's three prior Missouri convictions for second-degree burglary, Kemp faced an enhanced 15-year mandatory minimum term of imprisonment on Count II under the ACCA, rather than the statutory maximum term of 10 years set forth in 18 U.S.C. § 924(a)(2).

         The district court, in calculating the applicable Guidelines range, determined that, with respect to Count I, Kemp was a career offender under USSG § 4B1.1 and with respect to Count II, Kemp was an armed career criminal under USSG § 4B1.4(a). After grouping the offenses, the district court found that the applicable Guidelines range was a term of imprisonment of 324 to 405 months, based on a total offense level of 36 and criminal history category VI. Judge Jackson sentenced Kemp to concurrent terms of 210 months' imprisonment.

         On November 3, 2016, Kemp filed a motion under 28 U.S.C. § 2255, seeking relief under Mathis, 136 S.Ct. 2243. The district court concluded that, after Mathis, Kemp no longer had the requisite number of qualifying violent felony convictions to support the ACCA-enhanced sentence imposed on Count II. Judge Jackson determined that Count I was unaffected and ordered a re-sentencing hearing on Count II only.

         By administrative order, Kemp's case was transferred to Judge Limbaugh for the re-sentencing hearing. The re-sentencing hearing was held on September 6, 2017. On re-sentencing, the parties disputed whether Kemp could be re-sentenced on Count I. Kemp advocated for re-sentencing on Count I under the sentencing packaging doctrine. Judge Limbaugh re-sentenced Kemp on both counts since the amount of time Kemp would spend in custody was going to be unchanged. In calculating the applicable Guidelines range, the court relied on the 2013 Sentencing Guidelines manual as contained in the Resentencing Report prepared by the United States Probation Office. The Guidelines calculation recited at the initial sentencing hearing was re-announced at re-sentencing. Judge Limbaugh re-imposed a term of imprisonment of 210 months on Count I and imposed the statutory maximum, a concurrent term of 120 months' imprisonment, on Count II.

         II. Discussion

         Kemp seeks a remand because Judge Limbaugh used the 2013 edition of the Guidelines manual in effect at the time of his initial sentencing rather than the 2016 edition in effect at the time of his re-sentencing hearing. "Generally, district courts should apply the Guidelines 'that are in effect on the date the defendant is sentenced.'" United States v. Steward, 880 F.3d 983, 985 (8th Cir. 2018) (internal quotation marks omitted) (quoting Peugh v. United States, 569 U.S. 530, 537-38 (2013)). The United States concedes that when the court re-sentenced Kemp on both counts, it should have recalculated the Guidelines range for Count I because (A) the drug quantity amount would have been two levels lower pursuant to Amendment 782, and (B) burglary was removed as a predicate offense for career offender classification under Amendment 798.

         "We review a sentence in two parts: first, we review for significant procedural error, such as an improper calculation of the advisory sentencing guidelines range; and second, absent significant procedural error, we review for substantive reasonableness." United States v. Fischer, 551 F.3d 751, 754 (8th Cir. 2008) (citations omitted). We have determined that "[a] failure to properly calculate the advisory Guidelines range is a significant procedural error...." United States v. Spikes, 543 F.3d 1021, 1023 (8th Cir. 2008). "Where, as here, a defendant preserves a Guidelines challenge, we review for harmless error." United ...

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