Submitted: Oct. 22, 2013.
Rehearing and Rehearing En Banc Denied Jan. 30, 2014.[*]
Clemens A. Erdahl, argued, Cedar Rapids, IA, for Appellant.
Teresa Baumann, AUSA, argued, Cedar Rapids, IA, for Appellee.
Before RILEY, Chief Judge, BYE and MELLOY, Circuit Judges.
RILEY, Chief Judge.
This case is before us on remand fro the United States Supreme Court. On August 22, 2012, our court affirmed Milo Vareen Davis's convictions and sentences for conspiring to distribute cocaine base and cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(B), 846, and 851, and for money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2. See United States v. Davis, 690 F.3d 912, 917-18, 929 (8th Cir.2012). In affirming Davis's sentence, we concluded any error the district court  made in failing to apply retroactively the Fair Sentencing Act of 2010 (FSA) , Pub.L. No. 111-220, 124 Stat. 2372, was harmless given the basis for Davis's sentence. See Davis, 690 F.3d at 928-29 (discussing Dorsey v. United States, 567 U.S. ----, ----, 132 S.Ct. 2321, 2326, 183 L.Ed.2d 250 (2012) (holding " the new, more lenient mandatory minimum provisions" of the FSA apply to pre-FSA offenders)).
Davis filed a petition for writ of certiorari. On June 24, 2013, the Supreme Court granted certiorari, vacated our judgment, and remanded for reconsideration in light of Alleyne v. United States, 570 U.S. ----, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). See Davis v. United States, ---U.S. ----, 133 S.Ct. 2852, 186 L.Ed.2d 903 (2013). In Alleyne, the Supreme Court held the Sixth Amendment of the U.S. Constitution requires a jury to find beyond a reasonable doubt any fact that increases a mandatory minimum sentence. See Alleyne, 570 U.S. at ----, 133 S.Ct. at 2162-63.
Having reconsidered Davis's appeal as directed by the Supreme Court, we again affirm the district court's judgment and reinstate all but Part II.F. of our prior opinion. See Davis, 690 F.3d at 928-29. Any errors the district court committed with respect to Davis's sentence are harmless under the circumstances of this case.
See Fed.R.Crim.P. 52(a) ( " Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." ).
A jury convicted Davis of conspiring to distribute drugs and of money laundering. Specifically, the jury determined Davis conspired to distribute " 50 grams or more of cocaine base" and " 500 grams or more of a mixture or substance containing a detectable amount of cocaine," in each case the maximum amount specified on the verdict form. Based on the jury's quantity findings, the district court— though consistent with the law at the time— erroneously advised Davis at sentencing that he was subject to a mandatory minimum of twenty years imprisonment.
Notwithstanding Davis's argument to the contrary, the district court's error did not affect Davis's substantial rights. In calculating Davis's advisory United States Sentencing Guidelines (U.S.S.G.) range,
[t]he district court found Davis responsible for 5,163.06 grams of crack and 3,649.15 grams of powder cocaine, which resulted in an adjusted offense level of 36. See U.S.S.G. § 2D1.1. Because the adjusted offense level of 40 for the money laundering conviction was higher, the district court applied that level to both counts, determining Davis was subject to an advisory Guidelines range of 360 months to life imprisonment for his conspiracy conviction (level 40, category IV). See U.S.S.G. § 3D1.3(a) (explaining ...