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United States v. Hentges

United States Court of Appeals, Eighth Circuit

March 17, 2016

United States of America, Plaintiff - Appellee,
v.
Randy Allen Hentges, Defendant - Appellant

         Submitted September 12, 2014

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

         For United States of America, Plaintiff - Appellee: Dan Chatham, Assistant U.S. Attorney, Justin A. Lightfoot, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Northern District of Iowa, Cedar Rapids, IA.

         Randy Allen Hentges, Defendant - Appellant, Pro se, Terre Haute, IN.

         For Randy Allen Hentges, Defendant - Appellant: Mark C. Meyer, KINNAMON & KINNAMON, Cedar Rapids, IA.

         Before BYE, COLLOTON, and GRUENDER, Circuit Judges.

          OPINION

          COLLOTON, Circuit Judge.

         Randy Allen Hentges appeals from the 132-month prison sentence imposed by the district court after Hentges pleaded guilty to attempting to manufacture methamphetamine near a school. Hentges argues that the district court[1] erred in determining

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that he was a career offender under the advisory guidelines, and that the district court's pronouncement of an alternative sentence is insufficient to justify the sentence imposed. He also asserts that the district court denied him the right to allocution at sentencing. We affirm.

         Hentges pleaded guilty to attempt to manufacture methamphetamine near a school, in violation of 21 U.S.C. § § 841(b)(1)(C), 846, and 860. At sentencing, the district court determined that Hentges was a career offender under the sentencing guidelines, see U.S.S.G. § 4B1.1, that he accepted responsibility for his offense, see id. § 3E1.1, and that the advisory sentencing range was 188 to 235 months' imprisonment. The court then explained that even if Hentges were not a career offender, in which case the advisory sentencing range would have been 92 to 115 months' imprisonment, the court would have varied upward from the range pursuant to 18 U.S.C. § 3553(a), due to the seriousness of Hentges's criminal conduct and his incorrigibility. Under either approach, the court declared, it would arrive at the same sentence of 188 months' imprisonment. The court then reduced the sentence to 132 months on other grounds not relevant here.

         After comments from counsel, the court offered Hentges an opportunity to speak. When Hentges was finished, the court said that it was " ready to impose the sentence," and announced its judgment that Hentges was sentenced to a term of 132 months' imprisonment. Hentges appeals.

         Hentges first argues that the district court erred in classifying him as a career offender under U.S.S.G. § 4B1.1, because he had not sustained two qualifying prior convictions for a crime of violence or a controlled substance offense as required by U.S.S.G. § 4B1.1(a)(3). He admits one prior qualifying conviction for possession of cocaine with intent to deliver, but disputes the district court's determination that his convictions for possession of a precursor chemical with intent to manufacture a controlled substance and for attempted burglary in the third degree also qualify. The government responds that both of the prior convictions qualify, but that even if Hentges is not a career offender, the district court's alternative decision to vary upward from the advisory guidelines is enough to sustain the judgment. Hentges counters that the district court did not offer a sufficient justification for imposing the alternative sentence.

         We find it unnecessary to address whether Hentges qualifies as a career offender, because the district court's alternative decision to vary upward from the advisory guideline range is sufficient to justify the sentence imposed. The court explained that even if Hentges were not a career offender, the court would sentence Hentges--before any reduction on other grounds--to a term of 188 months pursuant to § 3553(a), rather than within the advisory range of 92 to 115 months. In short, the court concluded that Hentges is " at high risk to recidivate and he is incorrigible." S. Tr. 16. The court cited Hentges's extensive criminal history, which resulted in 22 criminal history points under the guidelines--making him " atypical" even for offenders who are placed in the highest criminal history category under the guidelines with 13 or more points. The court observed that lenient sentences in ...


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