Appeal from the United States District Court for the Eastern District of Missouri.
The opinion of the court was delivered by: Smith, Circuit Judge.
Submitted: January 12, 2009
Before LOKEN, Chief Judge, WOLLMAN, BEAM, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, BENTON, and SHEPHERD, Circuit Judges.
Kendrix D. Feemster was convicted of two counts of knowingly and intentionally distributing crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). At sentencing, the district court*fn1 imposed the statutory mandatory minimum sentence of 120 months' imprisonment and eight years of supervised release-a downward variance from the Guidelines range of 360 months' to life. The government appealed the sentence, and we remanded for resentencing because the record did not permit us to meaningfully analyze the reasonableness of Feemster's sentence. United States v. Feemster, 435 F.3d 881, 884 (8th Cir. 2006) ("Feemster I"). On remand, the district court again sentenced Feemster to 120 months' imprisonment but buttressed the rationale for the sentence. The government again appealed, and we found that the district court abused its discretion. United States v. Feemster, 483 F.3d 583, 588--90 (8th Cir. 2007) ("Feemster II"). The Supreme Court vacated the judgment and remanded to us for further consideration in light of Gall v. United States, 128 S.Ct. 586 (2007). We now affirm.
On March 16, 2004, Feemster sold 11.2 grams of crack cocaine to an undercover Drug Enforcement Administration (DEA) agent. Then, on March 25, 2004, he sold 6.8 grams of crack cocaine to the same officer. Thereafter, a grand jury charged Feemster with two counts of knowingly and intentionally distributing crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii).*fn2 Prior to trial, the government filed an information pursuant to 21 U.S.C. § 851(a) giving notice that, if convicted, Feemster faced a ten-year mandatory minimum sentence because of his prior conviction for a felony drug offense. Feemster went to trial, and the jury convicted him on both counts.
Prior to sentencing, the United States Probation Office prepared a presentence investigation report (PSR) that set forth Feemster's criminal history. According to the undisputed sections of the PSR,*fn3 Feemster had the following juvenile convictions: (1) at age 13, attempted stealing; (2) at age 14, making a false bomb report; and (3) at age 15, stealing, attempted stealing, and second-degree burglary. Additionally, Feemster had the following adult convictions and sentences: (1) at age 16, possession of a controlled substance (crack cocaine) and possession of marijuana, resulting in a suspended sentence and probation, which he successfully completed; (2) at age 17, first-degree burglary, resulting in a sentence of six years' imprisonment (including citations for conduct violations on 65 separate occasions), from which he was twice conditionally released and both times his conditional release was revoked (submitting a positive urine test for marijuana); (3) at age 23, first-degree robbery (involving a handgun carried by his co-defendant), resulting in a ten-year suspended sentence and probation, which he violated; and (4) at age 24, possession of marijuana, resulting in a 60-day suspended sentence and one-year unsupervised probation.
Without enhancements, Feemster's base offense level was 26, see U.S.S.G. § 2D1.1(c)(7), and his criminal history category was IV, resulting in an advisory Guidelines range of 92 to 115 months' imprisonment. Feemster's prior conviction for a felony drug offense triggered a statutory minimum sentence of 120 months' imprisonment. See 21 U.S.C. §§ 841(b)(1)(B), 851. Also, Feemster's adult status at the time he committed the instant offense and his prior convictions for two crimes of violence-first-degree burglary and first-degree robbery-prompted the probation office to recommend application of the career offender enhancement in the PSR. See U.S.S.G. § 4B1.1(a) ("A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense."). The career offender enhancement set Feemster's offense level at 37 and his criminal history category at VI, yielding an advisory Guidelines range of 360 months to life imprisonment.
At sentencing on March 10, 2005, Feemster requested that the district court consider a sentence lower than his Guidelines range, reminding the court that, absent his two qualifying crimes of violence, he would be facing a sentencing range of 92 to 115 months' imprisonment. The district court acknowledged that Feemster committed one of these crimes at age 17 and the other at age 23. Additionally, the court noted that Feemster's sentencing range had already increased from 92 to 115 months to at least 120 months by virtue of the mandatory minimum. The government argued that a 30-year Guidelines sentence was reasonable given Feemster's criminal history. But the court disagreed, stating:
I think this sentence is too much. 360 is too much because the offense you're counting on [for application of the ten-year mandatory minimum] is this 16-year-old drug offense for one when he was 16 years old. He's only 24. The crimes of alleged violence were one at 17, burglary, and the other at 23, the robbery.
The court then sentenced Feemster to concurrent 120-month sentences on each count of conviction, to be followed by three years of supervised release. On March 17, 2005, Feemster was brought before the court to correct the term of supervised release so that it met the statutory minimum of eight years. At the hearing, the court reiterated its reasons for deviating from the Guidelines range, explaining:
And I know that there was some inquiry relative to Mr. Feemster's sentence of 120 months, and I sentenced him there because in considering the defendant's age, current age and age at which he committed the prior offenses including offense when he was 17--16 and 17 years old, and that's why I gave him that sentence that he received.
The government appealed, and we remanded to the district court for resentencing, concluding that "the record at this time does not permit our court to undertake a meaningful analysis of whether the sentence imposed is unreasonable." Feemster I, 435 F.3d at 884.
At resentencing, the district court further developed its reasoning for sentencing Feemster to 120 months' imprisonment, stating:
Now, at the time that Mr. Feemster was sentenced[,] he was 27. At the time of the offense, . . . he was 26 . . . . Now, it's unquestioned that Mr. Feemster was a troubled youth. As they say, "Youth is wasted on the young." They just need a little wisdom. When he started getting . . . these points[,] . . . he was 17 years old.
In any event, [t]he [c]court has looked at the 3553(a) factors and at the time the instant offense was committed the defendant was 26 years of age, it involved the distribution of 18 grams of cocaine base to a federal agent. No weapon was present. And while the defendant does have a record and much of it is significant because of his being a troubled youth, it would seem it includes violent felony convictions, and that's what made him a career offender, and many-most of those . . . prior convictions occurred when he was a juvenile.
Now, as [sic] his adult conviction[,] he's placed on probation. He successfully completed that. Now, his second adult conviction involved the burglary of a home. And his third adult conviction was for robbery first degree which involved a weapon. However, his co-defendant, Dean Goddard, who had the weapon and defendant did not. And his fourth and final conviction was a misdemeanor for possession of marijuana. He was placed on probation. He successfully completed that probation.
So to me I think this 360 months to life is excessive. I think it pretty much takes away Mr. Feemster's life, so . . . in light of these 3553(a) factors, so I think an aggregate term of 120 months to be served concurrently with his state sentence of 1 CR-2495A and eight years of supervised release would seem to address the sentencing objectives of punishment and deterrence and incapacitation. I think . . . ten years and then eight years of supervised release, I think . . . that's 18 years right there that he will be under some kind of supervision by the court system.
The government appealed, and this court again remanded, finding that the district court abused its discretion by: (1) giving too much weight to Feemster's young age at the time of his prior offenses; (2) substantially basing the variance on Feemster's age at the time of the instant offense and sentencing; (3) considering Feemster's lack of involvement with firearms, when such lack of involvement had already been accounted for in calculating Feemster's Guidelines range; and (4) considering Feemster's successful completion of two terms of probation, when failure to complete his probation would have ...