Submitted February 9, 2015
Appeal from United States District Court for the Northern District of Iowa - Ft. Dodge.
For United States of America, Plaintiff - Appellee: John H. Lammers, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Northern District of Iowa, Sioux City, IA.
For Thomas Bryan Riehl, Defendant - Appellant: Anne M. Laverty, MULLIN & LAVERTY, Cedar Rapids, IA.
Thomas Bryan Riehl, Defendant - Appellant, Pro se, El Reno, OK.
Before BYE, BRIGHT, and BENTON, Circuit Judges.
Thomas Riehl pleaded guilty to one count of conspiring to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine or 50 grams or more of actual (pure) methamphetamine in violation of 21 U.S.C. § § 841(a)(1), (b)(1)(A), and 846. The district court sentenced him to 214 months' imprisonment and 5 years' supervised release. Riehl argues the district court erred in denying his motion for a downward variance. We affirm.
During late 2012 and early 2013, Riehl distributed large quantities of methamphetamine in northern Iowa. In August 2013, he was charged with one count of conspiring to distribute 500 grams or more
of a mixture or substance containing a detectable amount of methamphetamine or 50 grams or more of actual (pure) methamphetamine. He pleaded guilty to the charge pursuant to a plea agreement. The district court calculated Riehl's sentencing guidelines range to be 292 to 365 months and sentenced him to 214 months' imprisonment, after an uncontested departure motion for a thirty-five percent reduction in the guidelines range. At the sentencing hearing on May 8, 2014, both parties argued for a downward variance by two levels in anticipation of Amendment 782 to the United States Sentencing Guidelines. The district court recognized it had the authority to vary downward but declined to do so, explaining the then-proposed amendment was not guaranteed to take effect.
On appeal, Riehl argues (1) the district court erred in denying the motion to vary downward by two levels from the correctly calculated guidelines range in anticipation of Amendment 782; (2) the district court should have given weight to the policy reasons behind Amendment 782; and (3) the district court " failed [to] permit argument" on the issue. As to the first issue, our case law is clear: " [T]he district court was not required to consider the pending guidelines amendment. Consideration of the pending amendment is merely permissible, not required." United States v. Allebach, 526 F.3d 385, 389 (8th Cir. 2008); United States v. Davis, 276 F.App'x 527, 528 (8th Cir. 2008) (rejecting the argument that " the district court imposed an unreasonable sentence because it failed to consider a proposed amendment to the Guidelines that would have lowered the advisory Guidelines imprisonment range" ); United States v. Harris, 74 F.3d 1244 (8th Cir. 1996). The district court considered the motion and fully explained its reasons for not prospectively applying Amendment 782. It committed no error. Without any supporting authority, the dissent attempts to distinguish our case law on the basis that this case involves a different amendment and states that " [t]he applicability of the cases [above] . . . may be questionable." However, our holdings were not limited to any specific amendment. Moreover, they follow the firmly-established principle that the court must apply the Sentencing Guidelines in effect at the time of sentencing unless doing so would violate the ex post facto clause of the United States Constitution. See, e.g., United States v. Adams, 509 F.3d 929, 932 n.4 (8th Cir. 2007).
As to the second issue, this is not an argument we can consider on appeal. See United States v. Talamantes,620 F.3d 901, 902 (8th Cir. 2010) ( " Whatever the district court's views as to the Sentencing Commission's policy judgment underlying a particular guidelines provision, our proper role on appeal is only to determine whether the court abused its discretion by imposing a substantively unreasonable sentence on a particular offender." ). Riehl does not argue the district court erred in considering the 18 U.S.C. § 3553(a) factors, and we find his sentence substantively reasonable. On the final issue presented by Riehl, the transcript of the sentencing hearing demonstrates both parties argued for a downward variance and made their record on the issue. At no time did the ...