September 12, 2014
from United States District Court for the Northern District
of Iowa - Dubuque.
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.
Allen Hentges, Defendant - Appellant, Pro se, Terre Haute,
Randy Allen Hentges, Defendant - Appellant: Mark C. Meyer,
KINNAMON & KINNAMON, Cedar Rapids, IA.
BYE, COLLOTON, and GRUENDER, Circuit Judges.
COLLOTON, Circuit Judge.
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 erred in determining
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.
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.
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.
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
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 ...