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United States v. Peeples

United States Court of Appeals, Eighth Circuit

January 2, 2018

United States of America Plaintiff-Appellee
Ricky Ernest Peeples Defendant-Appellant

          Submitted: October 16, 2017

         Appeal from United States District Court for the Northern District of Iowa - Waterloo

          Before WOLLMAN, BEAM, and SHEPHERD, Circuit Judges.


         Defendant Ricky Peeples appeals the district court's[1] imposition of a 105-month sentence following his guilty plea to one count of Possession of Ammunition by a Felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Peeples argues that the district court erred when it: (1) found that his prior conviction for attempted murder was a crime of violence; (2) applied a four-level upward departure from his adjusted base offense level; and (3) imposed a substantively unreasonable sentence. We affirm.

         I. Background

         At 1:00 a.m. on January 2, 2016, officers responded to a report that Peeples was shooting a gun around his residence. When officers arrived, they talked to Anita Kowalsky and Neil Heminover, Peeples's downstairs neighbors. They told the officers that they had argued with Peeples earlier in the evening. They then showed the officers bullet holes in Heminover's bedroom wall and indicated that the shots had come from Peeples's upstairs residence.

         The officers noticed Peeples looking out the window of his apartment. When they went to speak with him, they noted that he was visibly intoxicated and was not complying with their instructions. Officers entered Peeples's apartment and saw, in plain view, a .22 caliber bullet next to Peeples's feet and two more .22 caliber bullets on his bed. Eventually, the officers discovered a .22 caliber revolver, three boxes of .22 caliber amunition, several spent .22 caliber shell casings in the kitchen trash can, and 8 spent shell casings in the cylinder of the revolver.

         Peeples pled guilty to one count of Possession of Ammunition by a Felon. He also did not deny that his actions on the night of his arrest constituted commission of the Class "D" felony of Intimidation with a Dangerous Weapon under Iowa Code§ 708.6. In calculating Peeples's base offense level, the district court adopted the Pre-sentence Report's ("PSR") recommendation that Peeples's previous conviction in Iowa for attempted murder constituted a crime of violence, thus giving him a base offense level of 20 under § 2K2.1(a)(4) of the United States Sentencing Guidelines (the "Guidelines"). The court then adjusted the offense level up four levels under § 2K2.1(b)(6) because Peeples used or possessed a firearm or ammunition in connection with another felony offense, here Intimidation with a Dangerous Weapon under Iowa Code § 708.6, raising his offense level to 24. The court subsequently deducted three levels because Peeples accepted responsibility for the offense, making his total offense level 21.

         However, the court found that the four-level adjustment under § 2K2.1(b)(6) did not sufficiently account for the dangerousness of Peeples's actions. To adequately account for this consideration, the district court applied an additional four-level upward departure under § 5K2.6, which allows for a substantial sentence increase for the use of a weapon or dangerous instrumentality in the commission of an offense. Thus, the court determined that Peeples's offense level was 25, resulting in an advisory guideline range of 84 to 105 months. The court found that 105 months was the appropriate sentence. The court additionally stated that based on the factors set forth in 18 U.S.C. § 3553(a), it would have found that 105 months was an appropriate sentence regardless of the base offense level calculation.

         II. Crime of Violence

         Peeples first challenges the district court's finding that attempted murder under Iowa Code § 707.11 (1991) is a crime of violence under § 2K2.1(a)(4)(A), making his base offense level a 20. We review de novo the district court's interpretation and application of the Guidelines and its determination of whether an offense is a crime of violence. United States v. Rice, 813 F.3d 704, 705 (8th Cir. 2016).

         Under § 2K2.1(a)(4), the base offense level is 20 if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense." A "crime of violence" under § 2K2.1(a)(4) "has the meaning given that term in § 4B1.2(a)." USSG § 2K2.1, comment. (n.1). A "crime of violence" is defined in part as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another." USSG § 4B1.2(a). Physical force under the Guidelines is "'violent force, ' meaning 'force capable of causing physical pain or injury to another person.'" Rice, 813 F.3d at 705 (quoting United States v. Williams, 690 F.3d 1056, 1067 (8th Cir.2012)).

         When determining whether a prior conviction was for a crime of violence, we must first consider whether the statute violated is divisible or indivisible. Id. If the statute is "divisible in that it encompasses multiple crimes, some of which are crimes of violence and some of which are not, we apply a modified categorical approach." Id. We examine "the charging document, plea colloquy, and comparable judicial records" to determine "which part of the statute the defendant violated, " and then we "determine whether a violation of that statutory subpart is a crime of violence." Id. (internal quotation marks omitted). If the statute is indivisible, "set[ting] out a single . . . set of elements to define a single crime, " Mathis v. United States, 136 S.Ct. 2243, 2248 (2016), "we apply a categorical approach, looking to the elements of the offense as defined in the . . . statute of conviction rather than ...

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