Submitted: September 25, 2019
from United States District Court for the Southern District
of Iowa - Des Moines
BENTON, SHEPHERD, and GRASZ, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
Damon Keys filed a motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255, arguing that the
government violated Brady v. Maryland, 373 U.S. 83
(1963), when it failed to disclose proffer interviews that
were material to his argument at sentencing that he was not a
career offender under the United States Sentencing Guidelines
(USSG). The district court denied his motion and granted a
certificate of appealability. Having jurisdiction under 28
U.S.C. § 2253, we affirm.
Keys pled guilty to conspiracy to distribute a substance
containing cocaine in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(C), and 846. At sentencing, the parties
disputed whether Keys should be designated as a career
offender under USSG § 4B1.1 based on his Iowa drug
trafficking convictions from 2005, 2008, and 2009. Keys
objected to the career-offender enhancement, arguing that his
2008 and 2009 convictions should not be counted as predicates
because the conduct underlying those convictions was
"relevant conduct" to the federal offense of
conviction. In other words, he asserted that his 2008 and
2009 Iowa drug trafficking convictions were part of the same
conspiracy for which he pled guilty and was being sentenced.
The district court rejected this argument, designated Keys as
a career offender, and sentenced him to 151 months
imprisonment. We affirmed on direct appeal. United States
v. Keys, 785 F.3d 1240 (8th Cir. 2015).
later filed a motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255. He argued that the
government violated Brady when it failed to disclose
certain proffer interviews that were material to his argument
at sentencing that he was not a career offender.
Specifically, Keys asserted that these proffer interviews
provided factual support for his argument that his 2008 and
2009 Iowa drug-trafficking convictions were part of the same
conspiracy as his federal offense of conviction. He suggested
that the proffer interviews showed that Keys's federal
offense of conviction was actually part of a much longer
conspiracy that began before he was incarcerated in 2008,
that Keys did not withdraw from this conspiracy while in
prison, and that Keys continued to participate in that
conspiracy following his release in 2012.
noting that it was unclear whether the proffer interviews
factually supported Keys's argument, the district court
concluded that it would have applied the same sentencing
range regardless of whether Keys was a career offender.
Accordingly, the district court found that the proffer
interviews "would not have had any impact on the outcome
of the sentencing hearing" and denied Keys's motion
on this basis. It issued a certificate of appealability, and
this appeal follows.
establish a Brady violation, a defendant must show
that the government suppressed evidence that was favorable to
the defendant and material either to guilt or to
punishment." United States v. Heppner, 519 F.3d
744, 750 (8th Cir. 2008). "[E]vidence is material only
if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding
would have been different." United States v.
Ladoucer, 573 F.3d 628, 636 (8th Cir. 2009) (alteration
in original) (quoting Pennsylvania v. Ritchie, 480
U.S. 39, 57 (1987)). We review the district court's
factual findings for clear error and its legal conclusions de
novo. White v. Steele, 853 F.3d 486, 489 (8th Cir.
Guidelines designate a defendant "as a career offender
if, among other things, he 'has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.'" United States v.
Grady, 931 F.3d 727, 729 (8th Cir. 2019) (quoting USSG
§ 4B1.1(a)). "A prior felony conviction counts
under the career offender provision if the conviction is
'counted separately under the provisions of §
4A1.1(a), (b), or (c)' from the present conviction."
Keys, 785 F.3d at 1242 (quoting USSG §
4B1.2(c)). Under USSG § 4A1.1, a defendant's
criminal history score increases for each "prior
sentence," which is defined as "any sentence
previously imposed upon adjudication of guilt, whether by
guilty plea, trial, or plea of nolo contendere, for conduct
not part of the instant offense." Id. (quoting
USSG § 4A1.2(a)(1)). The relevant Application Note
further explains that "[c]onduct that is part of the
instant offense means conduct that is relevant conduct to the
instant offense under the provisions of § 1B1.3."
USSG § 4A1.2, cmt. n.1. Accordingly, "if a prior
conviction is relevant conduct under USSG § 1B1.3, it
cannot count as a prior conviction under the career offender
provision." Keys, 785 F.3d at 1242.
assuming that the proffer interviews lend factual support to
Keys's argument that his 2008 and 2009 Iowa drug
convictions are relevant conduct to the federal offense of
conviction, the government's failure to disclose them did
not prejudice Keys at sentencing. This is because, as a
matter of law, Keys's argument was foreclosed by
Application Note 8 to USSG § 1B1.3. See United
States v. Walterman, 343 F.3d 938, 941 n.3 (8th Cir.
2003) ("Sentencing guideline commentary is authoritative
unless it violates the Constitution or is inconsistent with
For the purposes of subsection (a)(2), offense conduct
associated with a sentence that was imposed prior to the acts
or omissions constituting the instant federal offense (the
offense of conviction) is not considered as part of the same
course of ...