Submitted August 22, 2014
Appeal from United States District Court for the Northern District of Iowa - Sioux City.
For United States of America, Plaintiff - Appellee: Shawn Wehde, U.S. Attorney's Office, Northern District of Iowa, Sioux City, IA.
For Shirley Eileen Schmitt, Defendant - Appellant: Andrew Greenlee, Brownstone Law, Winter Park, FL; Chad Douglas Primmer, Council Bluffs, IA; Robert L. Sirianni Jr., Brownstone, P.A., Winter Park, FL.
Shirley Eileen Schmitt, Defendant - Appellant, Pro se, Waseca, MN.
Before BENTON, MELLOY, and SHEPHERD, Circuit Judges.
Shirley Eileen Schmitt appeals her sentence after the district court found her ineligible for the safety valve in 18 U.S.C. § 3553(f). Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
A federal jury found Schmitt guilty of conspiring to manufacture and distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(A), and 846, and possession of pseudoephedrine with intent to manufacture meth, in violation of 21 U.S.C. § 841(c)(2). In 2008, she had been convicted under Iowa law for possession of drug paraphernalia and buying illegal amounts of pseudoephedrine. Due to these two convictions, the district court found her ineligible for the safety valve. She received the statutory minimum 120 months.
" Safety-valve relief allows the district court to disregard an applicable statutory minimum if certain requirements are met." United States v. Barrera, 562 F.3d 899, 902 (8th Cir. 2009). The statute, as relevant here, disqualifies a defendant with " more than 1 criminal history point, as determined under the sentencing guidelines." 18 U.S.C. § 3553(f)(1). The defendant must establish eligibility by a preponderance of the evidence. United States v. Razo-Guerra, 534 F.3d 970, 974 (8th Cir. 2008). The parties agree that she has one point, for the possession-of-drug-paraphernalia conviction.
The issue is whether Schmitt has a second (disqualifying) point of criminal history. She argues that her 2008 buying conviction is " relevant conduct" to--part of--her latest offenses, and therefore does not justify a criminal history point. This court reviews " relevant conduct determinations for clear error, remembering that such a determination is fact-intensive and well within the district court's sentencing expertise and greater familiarity with the factual record." United States v. Hernandez, 712 F.3d 407, 409 (8th Cir. 2013) (citations omitted). See also United States v. Stone, 325 F.3d 1030, 1031 (8th Cir. 2003).
Relying on United States v. Boroughf, 649 F.3d 887 (8th Cir. 2011) and United States v. Pinkin, 675 F.3d 1088 (8th Cir. 2012), the district court found that Schmitt's buying conviction is not relevant conduct to her latest offenses.
The facts here parallel those in the Boroughf case. See Boroughf, 649 F.3d at 890-91 (prior possession of a 35-gram bag of marijuana was not relevant conduct to conspiracy to distribute thousands of kilograms of marijuana). Schmitt's earlier conviction was for buying an illegal amount of pseudoephedrine over a 30-day period. The latest offenses focus on manufacturing meth during a different two-year period. Indeed, ...