Submitted: April 15, 2019
from United States District Court for the Northern District
of Iowa - Cedar Rapids
SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
MELLOY, CIRCUIT JUDGE.
Ivan Clark pled guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1) and was
sentenced to 137 months' imprisonment. At his sentencing
hearing, the district court determined that Clark qualified
as an armed career criminal and calculated a base offense
level of 34 with a criminal history category VI. On appeal,
Clark argues that the district court erred in making those
determinations. We affirm.
October 10, 2017, Clark's wife filed a written report
with the police stating that Clark had twice pointed a
revolver at her and threatened to shoot her. Several days
later, Clark's wife reported a domestic disturbance and
officers arrested Clark. During the arrest, officers
recovered the revolver. Clark was charged with being a felon
in possession of a firearm. Later, before a grand jury,
Clark's wife testified about the event and told the grand
jury that the revolver Clark was arrested with was the same
revolver he had pointed at her.
sentencing hearing, the district court determined that Clark
was an armed career criminal because he had three prior
convictions for serious drug offenses that were
"committed on occasions different from one
another." 18 U.S.C. § 924(e)(1). In 1999, Clark was
convicted in Illinois of conspiring to distribute cocaine.
And in 2011, Clark was convicted in Iowa on two counts of
distributing cocaine base (one on July 25, 2011 and one on
August 1, 2011). The district court also calculated a base
offense level of 34 with a criminal history category VI after
finding that Clark had used and possessed the revolver in
connection with a crime of violence. See U.S.S.G.
§ 4B1.4(b)(3)(A); id. § 4B1.4(c)(2).
Specifically, the district court found, based on Clark's
wife's statements to the police and the grand jury, that
Clark displayed the revolver while assaulting his wife in
violation of various Iowa Code sections, including Iowa Code
§ 708.1(2)(c), which is a crime of violence. See
United States v. McGee, 890 F.3d 730, 736-37 (8th Cir.
timely filed this appeal.
first argues that he should not be considered an armed career
criminal because his convictions for two counts of
distributing cocaine base in 2011 were charged in the same
indictment along with a conspiracy-to-distribute count that
was ultimately dismissed. The conspiracy count, according to
Clark, suggests that the two distribution counts were part of
a continuous course of conduct rather than distinct criminal
episodes, and therefore he has only two prior convictions for
serious drug offenses-the 1999 conspiracy count and the
combined 2011 distribution counts. "We review de
novo whether a prior conviction is a predicate offense
under [18 U.S.C. § 924(e)(1)]." United States
v. Van, 543 F.3d 963, 966 (8th Cir. 2008).
addressed and rejected a similar argument in United
States v. Melbie, 751 F.3d 586 (8th Cir. 2014). In
Melbie, we considered whether a drug conspiracy
conviction and a possession-with-intent-to-deliver conviction
"that occurred during the period of the conspiracy and
was related to the object of the conspiracy" were
"separate qualifying predicate offenses" under 18
U.S.C. § 924(e)(1). Id. at 587. We held that
the possession conviction was a separate predicate offense
despite the fact that it overlapped in time with the
conspiracy conviction because it was "a punctuated event
within [the] conspiracy." Id. at 589. In other
words, "[a]lthough related to the entire course of
events in the ongoing conspiracy," the possession charge
was a separate predicate event because it "formed a
separate unit within the whole." Id. (quoting
United States v. Johnston, 220 F.3d 857, 862 (8th
Cir. 2000)). While in this case, Clark was only charged with
conspiracy rather than convicted, Melbie's
analysis still applies. Under Melbie, Clark's
convictions for two counts of distributing cocaine base are
properly considered separate predicate offenses because they
would have been punctuated events within the conspiracy.
Accordingly, Clark's first argument fails.
next argues that his wife's statements to the police and
grand jury were unsubstantiated. Consequently, he argues that
the district court should not have relied on them in
concluding that he used or possessed the revolver in
connection with a crime of violence. "We review the
factual findings underlying a sentence enhancement for clear
error." United States v. Cook, 356 F.3d 913,
917 (8th Cir. 2004).
finding sentencing facts, district courts apply a
preponderance-of-the-evidence standard. United States v.
Mustafa, 695 F.3d 860, 862 (8th Cir. 2012) (per curiam).
In addition, "[a] district court has wide discretion at
sentencing as to the kind of information considered or its
source." United States v. Pratt, 553 F.3d 1165,
1170 (8th Cir. 2009) (citation omitted). This means that,
"[i]n resolving any reasonable dispute concerning a
factor important to the sentencing determination, the court
may consider relevant information without regard to its
admissibility under the rules of evidence applicable at
trial, provided that the information has sufficient indicia
of reliability to support its probable accuracy."
Id. (emphasis omitted) (quoting U.S.S.G. §
6A1.3(a)). That relevant information may include
"criminal activity for which the defendant has not been
prosecuted and 'uncorroborated hearsay, provided the
[defendant is] given a chance to rebut or explain
it.'" Id. (alteration in original)
(citation omitted). Here, Clark's wife's statements,
though hearsay, were made under ...