United States v. Stacy Lee Peltier

276 F.3d 1003, 2002 U.S. App. LEXIS 605, 2002 WL 46873
CourtCourt of Appeals for the Eighth Circuit
DecidedJanuary 15, 2002
Docket01-1076
StatusPublished
Cited by44 cases

This text of 276 F.3d 1003 (United States v. Stacy Lee Peltier) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Stacy Lee Peltier, 276 F.3d 1003, 2002 U.S. App. LEXIS 605, 2002 WL 46873 (8th Cir. 2002).

Opinion

FAGG, Circuit Judge.

Over the course of 1992 and the beginning of 1993, Stacy Lee Peltier burglarized commercial buildings on separate occasions in various North Dakota counties. Peltier was often arrested for one burglary before committing the next. Peltier pleaded guilty to eighteen counts of burglary, and in one consolidated sentencing proceeding, the state court sentenced Peltier to concurrent five-year terms of imprisonment. After Peltier’s release from state prison, he ran afoul of federal law. In three separate indictments, the Government charged Peltier with gun and drug offenses. A jury found Peltier guilty of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1) and of receiving a firearm and ammunition while under felony indictment in violation of 18 U.S.C. § 922(n). Later, Peltier pleaded guilty to possessing methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and the Government dropped other drug charges. The gun and drug cases were consolidated for sentencing.

On the drug case, the district court * found Peltier qualified as a career offender under U.S.S.G. § 4B1.1 because he was at least eighteen and had two earlier convictions for crimes of violence when he committed the drug offense. As a career offender, Peltier’s base offense level was 34, based on a 40-year maximum penalty on the drug charge, id. § 4B1.1(C), less a two-level reduction for acceptance of responsibility, resulting in a final offense level of 32. The criminal history category for career offenders is always VI, id. § 4B1.1, making Peltier’s sentencing range 210-262 months on the drug conviction.

On the gun case, the district court found Peltier had at least three earlier convictions for violent felonies, and thus qualified as an Armed Career Criminal, 18 U.S.C. § 924(e), corresponding to a base offense level of 33. U.S.S.G. § 4B1.4(b)(3)(B). Because Peltier was out on bond from his drug case when he committed the gun offense, an additional three-level enhancement applied for committing a crime while on release, id. § 2J1.7, yielding a final offense level of 36. In calculating Peltier’s criminal history, the district court followed the Government’s recommendations in amendments to the presentence report (PSR). Treating the burglary sentences as related because all eighteen offenses had been consolidated for sentencing purposes, see id. § 4A1.2 n. 3, the district court counted three points for the first burglary conviction, id. § 4Al.l(a), three points for the remaining burglary convictions, id. § 4Al.l(f), two points for a 1990 theft conviction, and two points for a 1991 theft conviction, id. § 4Al.l(b). The ten criminal history points placed Peltier in criminal history category V. After adding two levels to the highest guideline offense level of 36 on the gun charge under the grouping rule in U.S.S.G. § 3D1.4, and taking the criminal history category of V on that charge, the district court found the guidelines produced a 360-life sentencing range. Nevertheless, the district court granted a downward departure under U.S.S.G. § 4A1.3 from criminal history category V to category III, concluding Pel-tier’s criminal history was overstated. This yielded a sentencing range of 292-365 months. The district court sentenced Pel-tier at the low end to 292 months in prison *1006 on the gun charge, and to a concurrent 210 months on the drug charge. Peltier appeals his sentence. The Government does not cross-appeal. We affirm.

Peltier first contends the earlier convictions used to enhance his gun sentence should have been submitted to the jury, and the failure to do so violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi holds, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. Peltier’s contention fails because Apprendi specifically excepts earlier convictions from the rule. We also reject Peltier’s assertion that Apprendi effectively overruled Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (refusing to interpret a statute to make the fact of an earlier conviction an element of the crime, and thus a fact question for the jury). Although the Court in Apprendi stated it was “arguable that Almendarez-Torres was incorrectly decided,” the Court specifically refused to overrule the decision. Id. at 489-90, 118 S.Ct. 1219. We must apply Supreme Court precedent as it stands, and that precedent does not require that either the existence or substance of Peltier’s earlier convictions be submitted to a jury and proven beyond a reasonable doubt. United States v. Davis, 260 F.3d 965, 969 (8th Cir.2001), petition for cert. filed, No. 01-7268 (U.S. Nov. 9, 2001).

Peltier next asserts the district court committed error in sentencing him as a career offender under U.S.S.G. § 4B1.1. Because Peltier was at least eighteen when he committed the drug offense, he is a career offender if he has at least two earlier felony convictions for crimes of violence. We have already held that burglary of a commercial building is a crime of violence within the meaning of § 4B1.2(a), which defines crime of violence for purposes of the career offender and criminal history guidelines. United States v. Hascall, 76 F.3d 902, 904 (8th Cir.1996); U.S.S.G. § 4A1.2(p). Peltier asks us to revisit Hascall, but one panel of this court cannot overrule the decision of another. United States v. Reynolds, 116 F.3d 328, 329 (8th Cir.1997).

Peltier also argues he does not have two earlier convictions because under the guidelines consolidation rule, U.S.S.G. § 4A1.2(a)(2), his eighteen burglary convictions are deemed related and thus count only as one. Section 4A1.2(a)(2) provides, “Prior sentences imposed in unrelated cases are to be counted separately. Prior sentences imposed in related cases are to be treated as one sentence for purposes of § 4Al.l(a), (b), and (c) [assigning numbers of criminal history points depending on length of each earlier prison sentence].” The commentary to § 4A1.2 explains, “Pri- or sentences are not considered related if they were for offenses that were separated by an intervening arrest.

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276 F.3d 1003, 2002 U.S. App. LEXIS 605, 2002 WL 46873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stacy-lee-peltier-ca8-2002.