Submitted: September 24, 2018
from United States District Court for the Eastern District of
Missouri - Cape Girardeau
WOLLMAN, KELLY, and ERICKSON, Circuit Judges.
ERICKSON, Circuit Judge.
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 pursuant to
Mathis v. United States, ___ U.S. ___, 136 S.Ct.
2243 (2016). The district court 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
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.
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'
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
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.
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.
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 ...