Submitted: March 15, 2019
from United States District Court for the District of
Minnesota - St. Paul
SHEPHERD, ERICKSON, and KOBES, Circuit Judges.
ERICKSON, CIRCUIT JUDGE.
Henry Edmonds pled guilty to five counts of distribution of a
controlled substance, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C). The district court sentenced Edmonds
to concurrent terms of 80 months' imprisonment on each
count. Edmonds appeals, arguing the district court erred when
it departed and varied upward from the advisory United States
Sentencing Guidelines ("Guidelines" or
"USSG") range. We affirm.
pled guilty to five counts of distributing a controlled
substance. Each offense involved a controlled buy with the
same confidential informant. The buys occurred in July and
August 2017. The controlled substance Edmonds sold consisted
of heroin with trace amounts of furanyl fentanyl,
carfentanil, or both.
calculating the applicable Guidelines range, the district
court determined the offenses involved a total amount of
5.929 grams of a fentanyl analogue, which corresponded under
the Guidelines to a base offense level of 18. Edmonds
received credit for accepting responsibility and timely
notification of his intent to change his plea, which resulted
in a total offense level of 15. With 40 criminal history
points, Edmonds was in Criminal History Category VI, which
yielded a sentencing range of 41 to 51 months. The government
moved for an upward variance based on the potency and
dangerousness of carfentanil and furanyl fentanyl as well as
an upward departure under USSG § 4A1.3 based on
Edmonds' understated criminal history.
district court granted both motions. It found a 15-month
upward departure from the high end of the applicable
Guidelines range was warranted due to Edmonds' criminal
history and an 18-month upward variance was warranted because
of the potency and societal impact of carfentanil and furanyl
fentanyl. The court reduced the sentence it would have
otherwise imposed by three months for the "hard
time" Edmonds had served while these charges were
pending and gave Edmonds credit for one month of time served
in state custody. The court imposed an 80-month term of
imprisonment on each count, to run concurrently. Edmonds
timely appeals the sentences imposed.
argues the district court improperly and unexpectedly doubled
his sentence when it granted motions for an upward variance
and an upward departure. Although Edmonds argued for a
within-Guidelines sentence, he did not object after the court
announced its findings regarding either the upward departure
or the variance. Accordingly, we review for plain
error. United States v. Mees, 640 F.3d
849, 854 (8th Cir. 2011). "To establish plain error,
[Edmonds] must show that there was error, that the error was
plain, and that the error affected his substantial
rights." Id. An error affects substantial
rights if there is "a 'reasonable probability,'
based on the appellate record as a whole, that but for the
error he would have received a more favorable sentence."
United States v. Linderman, 587 F.3d 896, 899 (8th
Cir. 2009) (quoting United States v. Pirani, 406
F.3d 543, 552 (8th Cir. 2005)).
no error in the district court's sentencing decisions.
When deciding to depart upward due to Edmonds' extensive
criminal history, the court did not consider merely the
number of prior convictions or the points calculated
according to the Guidelines. Instead, the court analyzed the
seriousness of the crimes. In particular, the court noted the
assault on an ex-girlfriend in 2011 that resulted in a
no-contact order, which Edmonds violated 255 times within
four months. The court also noted Edmonds' inability to
remain law-abiding while on supervised release.
review of Edmonds' criminal history convinces us that the
district court did not err when it increased Edmonds'
sentence based on his lengthy and serious criminal history.
Edmonds was 35 years old. His adult criminal history included
multiple convictions for assault, fleeing police officers,
controlled substance offenses, driving under the influence as
well as one burglary conviction. Edmonds also routinely
violated the terms of probation or supervised release. We are
satisfied the district court considered the appropriate
factors and gave an adequate explanation for its decision to
impose a 15-month upward departure from the advisory
to the upward variance, the court focused on the seriousness
of the offenses, a factor set forth in 18 U.S.C. §
3553(a). The heroin Edmonds sold to a confidential informant
was laced with carfentanil, furanyl fentanyl, or both. The
Presentence Investigation Report ("PSIR") noted
that between January and April, 2017 carfentanil had been
attributed to 11 overdose deaths in the Minneapolis,
Minnesota, metropolitan area. While Edmonds contested whether
he was responsible for any deaths, he did not object to this
portion of the PSIR. Likewise, Edmonds did not object to the
portion of the PSIR that estimated fentanyl is 50 to 100
times more potent than morphine. By extrapolation,
carfentanil is estimated to be 100 ...