author: RILEY, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Yahya JAWAD, Defendant-Appellant
    No. 16-1596
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 9, 2017
    Filed: March 27, 2017

      Counsel who represented the appellant was John D. Jacobsen of Cedar Rapids, IA.
    Counsel who represented the appellee was Anthony Morfitt, AUSA, of Cedar Rapids, IA.
    Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.

      . The Honorable William Jay Riley stepped down as Chief Judge, of the United States Court of Appeals for the Eighth Circuit at the close of business on March 10, 2017. He has been succeeded by the Honorable Lavenski R. Smith.

   RILEY, Chief Judge.

Yahya Jawad challenges' his sentence of 41 months imprisonment for trafficking in counterfeit mark goods in violation of 18 U.S.C. § 2320(a)(1), asserting the district court erred in calculating the value of the counterfeit goods and denying Jawad an acceptance-of-responsibility reduction, and abused its discretion by setting a substantively unreasonable sentence. Having appellate jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

1. BACKGROUND

In April 2014, the Michigan Department of State Police executed a traffic stop of Jawad during which he consented to a search of his van and trailer. As a result of this search, police officers discovered and seized a variety of counterfeit property, including purses, shoes, and belt buckles. The total value of the counterfeit items was estimated to be approximately $140,060. Jawad was convicted of possession of counterfeit property in Michigan state court and was required to pay a fine.

Jawad again came to the attention of law enforcement approximately nine months later. Jawad ran a liquidation or “Clearance Sale” in an abandoned store in Cedar Rapids, Iowa, in January 2015. Undercover agents from Homeland Security Investigations (HSI) paid a $7 fee to gain entry to the event, where employees identified Ja-wad as the manager. Jawad admitted merchandise in his booth, such as knock-off “Beats by Dr. Dre” headphones and phony designer purses, was counterfeit. HSI agents seized all merchandise in Jawad’s possession, valued at $156,650. On September 29, 2015, Jawad pled guilty to a one-count information charging him with trafficking in counterfeit goods in violation of 18 U.S.C. § 2320(a)(1). The magistrate judge ordered Jawad released before sentencing on a personal recognizance bond with supervision.

While released on supervision, Jawad once again found himself violating the law. In December 2015, less than three months after Jawad pled guilty in Iowa federal court, Kansas law enforcement officers attended a “Nationwide Liquidation” event in Topeka, Kansas, to ensure the event complied with state regulations. A woman collecting a $6 “membership” fee at the doors to the abandoned grocery store told officers Jawad was in charge of the event. The officers verbally warned Jawad. Ja-wad assured the officers he would comply with all applicable regulations, including making sure vendors were not selling counterfeit goods. Undercover officers later returned to conduct a controlled buy. The undercover officers purchased hats and sunglasses that were determined to be counterfeit, including several pairs of counterfeit Ray-Ban sunglasses the undercover officers purchased directly from Jawad, along with caps bearing logo marks of Adidas, North Pace, Nike, and Under Armour. Law enforcement then executed a search warrant and secured the entire premises. Only a portion of the merchandise at the sales event was seized because of the sheer amount of goods involved.

Jawad admitted the entrance fees collected went to him to “offset some of the expenses that he has to pay” in setting up and running the sales event. When asked where he obtained the merchandise, Jawad wbuld only state the merchandise came from UPS. Boxes containing merchandise recovered at the sales event were addressed to Yahya Liquidation Sale, the name of Jawad’s business, and other paperwork and business supplies such as credit card readers were registered to Yahya Jawad or Yahya Collections. The total value of the merchandise seized was estimated at $284,000.

Back in Iowa federal court, Jawad was sentenced on February 22, 2016. The government sought an enhancement pursuant to United States Sentencing Guidelines (U.S.S.G. or Guidelines) §§ lB1.3(a)(2) and 2B1.1, treating Jawad’s Michigan conviction and the Kansas sale as relevant conduct in calculating the infringement amount of Jawad’s offense of conviction. The government recognized the approximately $140,000 valuation from the Michigan conviction, the $156,000 valuation from the Iowa sale, and the $284,000 valuation from the Kansas sale would qualify Jawad for a fourteen-level enhancement, however, “out of an abundance of caution, particularly related to the Michigan amount seized since we can’t get our hands actually on it,” the government only recommended a twelve-level enhancement. See id. § 2Bl.l(b)(l)(G)-(H). Jawad contended á ten-level enhancement was appropriate because only the merchandise Jawad was personally responsible for in the Kansas sale should be included in the total value because Jawad’s “involvement was limited to accepting the $6 entry fee and the items contained in” only his booth. See id. § 2Bl.l(b)(l)(F).

The district court found the Kansas sale was relevant conduct to the offense of conviction and agreed with the government that the value of all merchandise seized at that event should be included in the total value of the infringement amount for purposes of U.S.S.G. § 2B1.1. Because “easily the amount fits within more than 250,000, but less than 550,000,” the district court applied a twelve-level enhancement.

Jawad further argued for a two-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3El.l(a) because he pled guilty and was compliant and forthcoming with investigators. The government objected to the reduction, suggesting Jawad clearly did not accept responsibility for his actions because he persisted in a “blatant re-offense of that which he had pled guilty to ... in Iowa.” The district court agreed with the government that Jawad did not accept responsibility. As the district court observed, “[w]hen you are out on pretrial release, which is trusting someone to go out and remain free of crime and he goes and sets up another sale out of state, that argues very strongly against a break in sentencing for acceptance of responsibility.” Accordingly, Jawad’s total offense level was 20. With a criminal history category I, Jawad’s advisory Guidelines sentencing range was 83 to 41 months imprisonment.

The district court then indicated it was inclined to sentence Jawad above his advisory Guidelines sentencing range and that “the more appropriate sentence is around a five year sentence.” The district court found Jawad’s conduct exhibited a “total and complete lack of respect for the laws of the United States” and demonstrated Jawad is “somebody who continually violates the same law or regulation time after time.” Citing a need to reflect the seriousness of the offense and to deter Jawad from future crimes, the district court sentenced Jawad to 41 months imprisonment. Jawad filed this timely appeal, (1) contending the district court erred in calculating his advisory Guidelines sentencing range because it (a) applied a twelve-level increase for the amount of loss when it erroneously calculated the loss amount, and (b) failed to apply a two-level reduction for acceptance of responsibility, and (2) claiming his sentence is substantively unreasonable.

II. DISCUSSION

Though Jawad does not contend the Kansas sale itself should not be included as relevant conduct, Jawad asserts the district court should have only included the economic value of the goods for which he was personally responsible during the Kansas sale, instead of including the value of all merchandise seized from the event, when it calculated the infringement amount of his offense and relevant conduct pursuant to U.S.S.G. § 1B1.3. We review the application of sentencing enhancements and reductions de novo, and review the underlying factual basis, such as the value of the infringement amount, for clear error. See United States v. Borders, 829 F.3d 558, 567 (8th Cir. 2016).

Specific offense characteristics, like the infringement amount, are determined by including “all acts and omissions of others that were (i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with that criminal activity.” U.S.S.G. § lB1.3(a)(l)(B); see also id. § lB1.3(a)(2). Thus, in calculating a defendant’s advisory Guidelines sentencing range for an economic offense involving theft, property damage, or counterfeit goods, the defendant “can be held liable for any loss from activities reasonably foreseeable, within the scope, and in furtherance of, the criminal activity.” Borders, 829 F.3d at 568.

By his own admission, Jawad was “in charge” of the Kansas sales event. At Ja-wad’s sentencing hearing, the evidence demonstrated Jawad held the keys to the building where the sales event was held and used the entrance fees to offset his expenses in running the event. The investigators also found “[cjhecks, card readers, business cards ... national liquidation cards and connections to websites” that were associated with some variation of Ja-wad’s name or his ‘Yahya” business. The shipping labels on boxes of the counterfeit merchandise found throughout the event space were addressed to ‘Yahya Liquidation Sale.” It is clear from this evidence Jawad had a major role in organizing and arranging the Kansas sales event. As the organizer of an event specializing in the sale of “knock-offs,” and of similar events around the country, Jawad cannot claim other vendors’ sales of counterfeit goods were not reasonably foreseeable or beyond the scope of his undertaking. See United States v. Adejumo, 772 F.3d 513, 533 (8th Cir. 2014) (“In determining the individual defendant’s relevant conduct, the district court must look at what the individual has agreed to do and whether the actions of others in the conspiracy were foreseeable from his vantage point.”).

The main point of Jawad’s argument against including all goods seized at the Kansas sale is that the district court valued the counterfeit goods “[i]n a glaringly inconsistent manner” by including only the counterfeit goods he personally held for sale in the valuation of goods for the Iowa sale. If anything, this argument points to a potential undervaluation of the infringement amount resulting from Jawad’s criminal conduct — because Jawad was similarly in charge of the Iowa sales event, all counterfeit merchandise from that event reasonably could be included in calculating the amount of the infringement. The district court did not err in including the full value of the goods seized in the Kansas sale in Jawad’s infringement amount and applying a twelve-level enhancement.

The district court similarly did not err in denying Jawad the requested two-level reduction for acceptance of responsibility. A district court can properly consider various factors in determining whether the defendant has accepted responsibility, including whether he “truthfully admitted] the conduct comprising the offense(s) of conviction” and “voluntar[il]y terminat[ed] or withdraw] from criminal conduct or associations.” U.S.S.G. § 3E1.1 cmt. n.l(A)-(B). “[W]e will reverse the district court’s denial of a reduction ‘only if it is so clearly erroneous as to be without foundation.’ ” United States v. Binkholder, 832 F.3d 923, 927 (8th Cir. 2016) (quoting Adejumo, 772 F.3d at 536). Here, the district court had a strong foundation upon which to base its denial of an acceptance-of-responsibility reduction. While Jawad did admit the conduct underlying his conviction, he did not voluntarily terminate or withdraw from his involvement in criminal conduct. “[CJontinued criminal conduct, even if minor and unrelated to the offense of conviction, can make a sentence reduction for acceptance of responsibility inappropriate.” United States v. Ngo, 132 F.3d 1231, 1233 (8th Cir. 1997). Certainly, if subsequent minor, unrelated criminal conduct makes an aceeptance-of-responsibility reduction inappropriate, so too does continued involvement in the same criminal conduct as the offense of conviction.

Finally, Jawad maintains his sentence was substantively unreasonable. While the district court did sentence Ja-wad at the top of his advisory Guidelines range, “ ‘it will be the unusual case when we reverse a district court sentence— whether within, above, or below the applicable Guidelines range — as substantively unreasonable.’” United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (quoting United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008)). “Jawad’s total and complete lack of respect for the laws of the United States,” as the district court noted, and Jawad’s disrespect for the rightful property rights of others, evidenced especially by Jawad’s continued criminal conduct while on pretrial -release, justify the district court’s determination that Jawad is at high risk to recidivate because [he doesn’t] care.” While the district court recognized Jawad has no history of alcohol or substance abuse, the district court set a sentence it felt reflected the seriousness of Jawad “stealing the mark of manufacturers who have expended considerable] time and money to develop the mark” and then “de-ceiv[ing] the customer,” which could have a “potential impact on the American economy and the business people that work hard to produce responsible and respected goods.” The district court did not fail to consider a relevant factor, give significant weight to an improper or irrelevant factor, or commit a clear error of judgment in weighing the appropriate factors, and thus did not abuse its discretion in sentencing Jawad. See United States v. Funke, 846 F.3d 998, 1000 (8th Cir. 2017).

III. CONCLUSION

We affirm in all respects.

      . The Honorable Linda R. Reade, United States District Judge for the Northern District of Iowa.


source: Caselaw Access Project

author: KELLY, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Terrance C. JACKSON, Defendant-Appellant
    No. 16-2433
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 15, 2016
    Filed: March 27, 2017

      Counsel who presented argument on behalf of the appellant was Penelope S. Strong, of Billings, MT. The following attorney(s) appeared on the appellant brief; Penelope S. Strong, of Billings, MT.
    Counsel who presented argument on behalf of the appellee was Rick Lee Volk, AUSA, of Bismarck, ND. The following attorney(s) appeared on the appellee brief; Rick Lee Volk, AUSA, of Bismarck, ND.
    Before KELLY and MURPHY, Circuit Judges, and MONTGOMERY, District Judge.

      . The Honorable Ann D. Montgomery, United States District Judge for the District of Minnesota, sitting by designation.

   KELLY, Circuit Judge.

A jury convicted Terrance C. Jackson of second-degree murder and assault with a deadly weapon for the March 27, 2014, killing of Gerald Smith on the Fort Bert-hold Indian Reservation in New Town, North Dakota. The district court sentenced Jackson to 480 months of imprisonment and five years of supervised release. Jackson appeals the district court’s denial of his suppression motion, his motion in limine to admit evidence of Smith’s violence, his request for surrebuttal argument at closing, his motion to continue sentencing, and his requests for a sentencing variance and a continuance of the sentencing hearing. We have jurisdiction pursuant to 28 U.S.C. § 1291 and, finding no reversible error, we affirm.

I. Background

On March 27, 2014, Smith and his friend Neal Hale were on the side of the highway-picking up trash. Jackson was driving in his pickup truck with his cousin when he saw Smith, and he pulled over. Hale approached the truck, and Jackson told him that Smith had pulled a gun on him a few days earlier and he just wanted to talk to him. Jackson got out of the truck, removing his hat and sunglasses, and Jackson and Smith approached one another. Smith hit Jackson in the face with his fist, causing Jackson to stagger backward. The two men then began swinging at each other with Smith making contact once more, elbowing Jackson in the body. Next, Jackson reached into his pocket and pulled out a knife, which he swung at Smith twice. The knife struck Smith in the chest on the second swing. Smith stumbled toward the roadway and collapsed as Jackson jumped into the pickup, which his cousin was now driving, and drove off. Smith died at the scene.

As they drove away, Jackson said, while sobbing, “I think I killed him.” Jackson’s cousin pulled over and got out of the car, and Jackson continued on to the apartment where his girlfriend was staying. When he entered, his girlfriend was lying on the couch. Jackson laid the knife he used to stab Smith on her chest, and told her he had stabbed Smith. A friend then braided and cut Jackson’s long hair. As is traditional in his culture, Jackson gave the braid to his brother to give to their mother. Shortly thereafter, the police arrived at the apartment, found Jackson hiding in a closet, and arrested him.

Officers arrested Jackson pursuant to a federal warrant for violations of conditions of supervised release from a 2011 burglary conviction as well as on tribal charges. A tribal officer read Jackson his Miranda warnings and took him to the Gerald Tex Fox Justice Center (Justice Center) in New Town, North Dakota. A few hours later, several officers questioned Jackson and received consent to swab his hands. Prior to trial, Jackson moved to suppress statements he made during this questioning, which the district court denied.

Jackson pursued a self-defense theory at trial. Jackson presented evidence that his family and Smith’s family had a history of violent altercations with one another. Most recently, about two days prior to the stabbing, Smith pointed a gun at Jackson while they were at Jackson’s cousin’s house. Pri- or incidents included Smith hitting Jackson’s sister in the face earlier in 2014 and Smith stabbing Jackson in the torso in 2006 when the two were 15 years old. To support his self-defense claim, Jackson moved in limine to admit these prior violent acts by Smith, among many others, as well as evidence of Smith’s reputation for violence. The district court permitted some evidence of Smith’s prior violence at trial but excluded certain specific acts and related evidence.

A four-day jury trial commenced on December 14, 2015, at which the government called seventeen witnesses and the defense called six, including Jackson. Prior to trial and again before closing, Jackson moved to present a surrebuttal closing argument, contending that Federal Rule of Criminal Procedure 29.1, which controls the order of closing arguments, was unconstitutional as applied to him. In each instance, the district court denied the request for surrebut-tal argument. After asking a question regarding the elements of the Iesser-ineluded voluntary manslaughter charge, the jury found Jackson guilty of second-degree murder and assault with a deadly weapon.

Using the 2015 Sentencing Guidelines, the Presentence Investigation Report (PSR) determined Jackson had an offense level of 38 and a criminal history category of VI for a sentencing range of 360 months to life. Jackson’s criminal history category was raised from V to VI because he was designated a career offender due to convictions for burglary and aggravated domestic assault. Even without career offender status, Jackson’s sentencing range would have been unchanged at 360 months to life. After the issuance of the PSR, Jackson moved to continue the sentencing hearing for one month to obtain a mental health evaluation to support an argument for a variance from the Guidelines range. The government opposed the continuance, and the district court denied it.

At the May 16, 2016, sentencing hearing, the government presented testimony from Smith’s family and a witness to the crime, and the defense offered the testimony of Jackson’s mother and cousin. After hearing the arguments of counsel, including Jackson’s request for a variance based on Smith’s violent history, the district court sentenced Jackson to 480 months imprisonment on the second-degree murder count and 120 months imprisonment on the assault with a deadly weapon count, to be served concurrently, followed by five years of supervised release.

Jackson now appeals his conviction and sentence, arguing the district court committed multiple errors before, during, and after trial.

II. Discussion

Jackson appeals rulings made by the district court at four stages of the proceedings. First, Jackson argues the district court erred in denying his motion to suppress statements he made to officers six hours after his arrest as the product of unlawful interrogation in violation of his Miranda rights. Second, Jackson contends the district court erred in excluding certain evidence of Smith’s violence. Third, Jackson challenges the district court’s refusal to permit his counsel to offer a surre-buttal closing argument. Finally, Jackson asserts that his sentence is procedurally and substantively unreasonable and that the district court erred in refusing to continue his sentencing hearing. The court addresses these arguments in turn.

A. Motion to Suppress

Before trial, Jackson moved to suppress all the statements he made to interviewing officers on the day of his arrest as a violation of his Miranda rights. The court held a .suppression hearing at which tribal officer Jacob Gadewoltz, Federal Bureau of Investigation (FBI) Agent Chad Coulter, and the defendant testified. Following the hearing, the district court denied the motion, concluding that the officers’ questions did not amount to interrogation and thus did not violate Miranda. We review the district court’s factual findings for clear error and its legal conclusions de novo. See United States v. Laurita, 821 F.3d 1020, 1023 (8th Cir. 2016).

Jackson was arrested at 5:13 p.m., two hours after Smith’s death, pursuant to tribal charges and a federal warrant dated March 19, 2014, for violating the terms and conditions of supervised release from a 2011 burglary conviction. Officer Gade-woltz arrested Jackson, read him Miranda warnings, and took him to the Justice Center.

FBI Agents Coulter and Bruce Bennett and Bureau of Indian Affairs Agent Gerald White went to the Justice Center to swab Jackson’s fingers for DNA evidence and to attempt to interview him. They set up in the jail administrator’s unoccupied office, arranging four chairs for the three agents and Jackson. Jackson was escorted to the office at 9:53 p.m. and was seated, unrestrained, in the empty chair closest to the door. Agent Coulter described Jackson as looking “sick and exhausted,” sitting with his arms folded and bent over.

Agent Coulter, who took notes during the interview and later drafted a report, asked Jackson for information about his family, address, and date of birth, which Jackson provided. Agent Bennett showed Jackson a copy of the federal warrant and asked him if he knew why he was detained. Jackson said he knew of the warrant, but that he did not understand why he was in jail. Jackson also provided the name of his probation officer at the agent’s request.

Then, Agent Coulter asked and received Jackson’s consent to swab his hands. Toward the end of the swabbing process, Agent Bennett asked about the events from earlier in the day, and Jackson responded that he would prefer to have an attorney present to discuss it. According to Agent Coulter’s testimony, Jackson then “voluntarily blurted out” that he had been “slamming meth,” that he had been up for several days since his birthday, and that the only sleep he had was in the jail just prior to the interview. Agent Coulter also testified that Jackson used the phrases “fucked up” and “don’t remember.” Contrary to Agent Coulter, Jackson testified that these statements were made in response to questions from the officers regarding his drug use and how long he had been awake.

Following these statements, Jackson pulled his knees to his chest and clutched his arms around them. Agent Coulter testified that at this point the officers tried to ascertain Jackson’s mental and physical state. They asked him about medications and allergies and to rate his well-being on a scale of one to ten. Jackson responded he was not taking any prescription medications, had no allergies, and rated his well-being at a level three. Agent Bennett also asked Jackson, “Do you know when you last cut your hair?” Jackson answered that he did not know. Agent Coulter testified that this question was posed because Jackson’s t-shirt had a substantial amount of hair along the shoulders and the officers were trying “to determine if he even knows what that day’s date was.”

At the end of the interview, the conversation returned to the revocation warrant and Jackson stated that he wanted an attorney present to discuss it. Jackson was returned to his cell at 10:14 p.m.

On appeal, Jackson challenges the district court’s conclusion that the officers’ questions during this interview did not amount to interrogation in violation of his Miranda rights. Once an accused who is in custody “expresse[s] his desire to deal with the police only through counsel,” he shall not be “subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). It is undisputed that Jackson was in custody at the time of the interview, that Officer Gadewoltz read Jackson his Miranda rights immediately following his arrest, and that Jackson invoked his right to counsel twice during the interview. Counsel was not made available to Jackson during the interview, nor does the government argue that Jackson initiated further communication with the officers. Therefore, if the interview of Jackson amounted to interrogation, then it was in violation of Jackson’s Fifth Amendment right to counsel, and his statements should have been suppressed. See id. at 486, 101 S.Ct. 1880 (“Absent such interrogation, there would have been no infringement of the right [to counsel] that Edwards invoked.... ”); see also Arizona v. Mauro, 481 U.S. 520, 527, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987) (holding that an officer’s actions following the defendant’s invocation of right to counsel did not amount to interrogation in violation of Miranda and upholding admission of the conversation).

Interrogation occurs when a law enforcement officer engages in “either express questioning or its functional equivalent,” which includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (footnotes omitted). “The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.” Id. at 301, 100 S.Ct. 1682. Because Jackson made several statements purportedly in response to separate questions from the officers, we analyze each statement separately. See Pennsylvania v. Muniz, 496 U.S. 582, 590-605, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990).

1. Drug Use and Lack of Sleep

Jackson argues that the district court should have suppressed his statements regarding drug use and lack of sleep. At the hearing, Agent Coulter and Jackson offered contrary testimony: Agent Coulter testified that Jackson volunteered that he had been awake for days, injected methamphetamine, and used the phrases “fucked up” and “don’t remember;” whereas Jackson testified that these statements were made in response to specific police questions. The district court adopted Agent Coulter’s version of the events, concluding that Jackson “voluntarily stated” this information. “Volunteered statements of any kind” are not the product of police interrogation and thus “are not barred by the Fifth Amendment.” Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); see United States v. Lockett, 393 F.3d 834, 837 (8th Cir. 2005) (holding that statements that “were not made in response to police questioning” “were voluntarily made, and their admission was not in violation of Miranda”). We cannot find that the district court clearly erred in crediting Agent Coulter’s testimony over Jackson’s. See United States v. Tail, 459 F.3d 854, 857-58 (8th Cir. 2006) (finding no clear error in the district court’s adoption of the agent’s account of his conversation with the defendant).

2. Physical and Mental Health

Following Jackson’s voluntary statements about drug use and sleep deprivation, he curled up into the fetal position in his chair, and the officers asked Jackson if he took any prescription medications or had any allergies and asked him to rate his well-being on a scale of one to ten. Agent Coulter testified the questions were motivated by a concern for Jackson’s physical and mental health. Jackson argues that his responses should be excluded as the product of interrogation.

Given the very limited nature of the questions asked by the officers regarding Jackson’s health, we conclude that they were not “reasonably likely to elicit an incriminating response from the suspect.” Innis, 446 U.S. at 301, 100 S.Ct. 1682. The question regarding medications and allergies required only a yes or no response, and the rating of well-being required only a numerical response. From Jackson’s perspective, these questions would not reasonably be viewed as seeking incriminating evidence.

Moreover, because Jackson voluntarily disclosed that he had been awake for several days and using drugs, the agents’ follow-up questions regarding his health do not constitute an interrogation. See Butzin v. Wood, 886 F.2d 1016, 1018 (8th Cir. 1989) (“An officer’s attempt to seek clarification of an ambiguous statement is not generally construed as interrogation for Miranda purposes if the question does not enhance the defendant’s guilt or raise the offense to a higher degree!.]” (internal quotation omitted)); see United States v. Jones, 842 F.3d 1077, 1083 (8th Cir. 2016) (holding that officer who asked defendant what he meant after he said “You finally fucking got me” was admissible because “[a]n officer’s request for clarification of a spontaneous statement does generally not amount to interrogation” (alteration in original) (internal quotation omitted)).

Jackson argues that because the officers knew his federal warrant was in part for methamphetamine use, he had not slept, and he had recently been high on meth, they were aware of his “unusual susceptibility” to questioning, particularly about medications and mental health. Innis, 446 U.S. at 302 n.8, 100 S.Ct. 1682 (“Any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining whether the police should have known that their words or actions were reasonably likely to elicit an incriminating response from the suspect.”). However, this knowledge would have also raised concerns about Jackson’s physical and mental health and the limited questioning related to those concerns did not represent an attempt to persuade him to speak about the crimes.

3. Haircut

Finally, Jackson argues that Agent Bennett’s question about the last time he cut his hair exceeded the scope of permissible questioning and became interrogation. Adopting Agent Coulter’s explanation, the district court lumped the haircut question in with those concerning medications, allergies, and well-being, finding them permissible because they were “meant to ascertain the status of Jackson’s health” and because the agents had no reason to know “such questions would elicit any incriminating response.”

Regardless of its relevance, if any, to assessing Jackson’s health, the question regarding Jackson’s last haircut crossed the line into improper interrogation. At the suppression hearing, Agent Coulter testified that prior to interviewing Jackson, he and Agent Bennett went to the apartment where Jackson was arrested, interviewed witnesses, and discussed the case with other officers. At the apartment, there “was discussion about recently cut hair” and the officers learned that the murder suspect “had his hair cut that evening at that apartment.” Because the officers had prior knowledge about the murder suspect having recently cut his hair, they should have known that the question regarding Jackson’s last haircut “was reasonably likely to elicit an incriminating response” from Jackson regarding the murder. Innis, 446 U.S. at 301, 100 S.Ct. 1682 (footnote omitted).

In United States v. Cowan, 674 F.3d 947 (8th Cir. 2012), an officer was questioning the defendant, who was suspected of trafficking crack cocaine from Chicago, in an apartment. The officer first asked how the defendant arrived at the apartment, which the court concluded was a permissible request for basic identification information. Id. at 958. The defendant responded that he arrived by bus from Chicago. The officer next asked why the defendant had car keys if he arrived by bus. Id. The court concluded this question constituted an interrogation under Miranda because the officer “had information linking both the crack cocaine and Cowan to Chicago” and then “asked about an item the officers suspected linked the defendant to a crime.” Id Like in Cowan, the agents had information linking both the murder suspect and Jackson to a recent haircut. They should have been aware that the question regarding his haircut called for an answer that was directly related to the events earlier in the day — a topic that Jackson refused to discuss without counsel present. Agent Bennett knew that the suspect cut his hair at the apartment he fled to after the murder, and he suspected Jackson was responsible for stabbing Smith. Thus, he “should reasonably [have been] aware that the information sought,” i e., that Jackson had a haircut earlier that day, was “directly relevant” to linking Jackson “to the substantive offense.” Id. (alteration in original) (quoting United States v. Brown, 101 F.3d 1272, 1274 (8th Cir. 1996)).

The government argues that even if the district court should have suppressed Jackson’s response of “I don’t know” to the haircut question, admission of the statement was harmless error. The haircut question and Jackson’s answer were brought out several times at trial: during Agent Coulter’s direct examination, Jackson’s cross examination, and the government’s closing argument. At closing, the government relied on this exchange to challenge the “credibility of the defendant’s testimony” at trial, arguing that if Jackson was “that lacking in memory” on the night of the incident such that he could not remember a haircut that occurred hours earlier, then “you have reason to question how a year-and-a-half later, when he’s on the witness stand, he’s able to give you all of those details.” Thus, the harm from admission of the haircut exchange, if any, comes not from the fact that Jackson had a haircut — which was introduced several times at trial by other witnesses— but rather in the injury to Jackson’s credibility.

We recognize that a defendant’s credibility can be “vital to his self-defense claim.” Fields v. Leapley, 30 F.3d 986, 991 (8th Cir. 1994). Where, as here, a defendant relying on a self-defense theory testifies at trial, we must carefully guard against improper admission of statements made by the defendant in violation of Miranda that are used to attack his credibility. Cf. id. (holding that the government’s two references during closing to defendant’s invocation of his Miranda rights in order to impeach the credibility of his testimony at trial were not harmless error). Nevertheless, “[t]he admission of statements obtained in violation of Miranda may constitute harmless error where there remains overwhelming independent evidence as to the defendant’s guilt.” United States v. Thomas, 664 F.3d 217, 223 (8th Cir. 2011) (quoting Chavez v. Weber, 497 F.3d 796, 805 (8th Cir. 2007)).

At trial, Jackson admitted that he was responsible for Smith’s death, but argued that the killing was done in self defense. Aside from Jackson, three other eyewitnesses testified regarding the altercation between Jackson and Smith: Neal Hale and two drivers on the roadway. All three supported the government’s theory of the case. Moreover, Jackson’s cousin, brother, and girlfriend testified about Jackson’s statements and actions immediately following the incident, which were inconsistent with self defense. Thus, Jackson’s testimony was the primary evidence in support of self defense.

Considering the record as a whole, see United States v. Hasting, 461 U.S. 499, 508, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1988), it is “unlikely” that the single statement that Jackson did not know when he cut his hair had a “major impact on the jury in determining whether [Jackson] w[as] believable,” Flittie v. Solem, 775 F.2d 933, 944 (8th Cir. 1985) (en banc). Aside from Jackson not remembering the haircut, there was substantial other evidence introduced at trial which suggested that Jackson’s memory of the incident was unreliable. Notably, the jury heard that Jackson voluntarily revealed to officers that he had been using methamphetamine and had not slept. Jackson’s girlfriend and his cellmate also testified that Jackson was under the influence of methamphetamine on the day of the offense and did not remember what happened.

Accordingly, although it was error to admit Jackson’s response to the officer’s question regarding the last time he cut his hair, the admission was harmless.

B. Motion in Limine to Admit Smith’s Prior Violence

Prior to trial, Jackson moved in limine to admit eight pieces of evidence relating to Smith’s prior violence under Federal Rules of Evidence 404(b), 404(a)(2), and 405(a). The district court permitted testimony regarding Smith hitting Sabrina Grinnell in her jaw in March 2014, Smith hitting Jackson’s sister in the face in January 2014, and Smith pulling out a gun and pointing it at Jackson and his cousin in his cousin’s home a few days prior to Smith’s death. The district court excluded the remainder of the evidence offered by Jackson, and he appeals four such exclusions. We review the district court’s evidentiary rulings for abuse of discretion. United States v. Drapeau, 644 F.3d 646, 654 (8th Cir. 2011).

First, Jackson challenges the district court’s refusal to permit evidence of Smith firing eight shots into Jackson’s home in 2006. The district court excluded the act because Jackson failed to offer sufficient proof that Smith was responsible for the shooting. Second, Jackson argues the district court should have allowed him to introduce Smith’s 2013 stabbing of Wayne Zaste in the chest. The district court excluded this incident because Jackson provided none of the facts of the stabbing, such as where it took place or whether Smith was charged. As to these two specific acts, “[t]he district court did not abuse its discretion in denying the offer of proof,” as Jackson failed to provide the court with sufficient evidence to judge the relevance and reliability of the evidence. United States v. Gregg, 451 F.3d 930, 936 (8th Cir. 2006) (affirming exclusion of prior bad acts of victim where the offer of proof identified “no specific instances of James’s prior conduct”); see United States v. Two Eagle, 318 F.3d 785, 794 (8th Cir. 2003) (finding no abuse of discretion in excluding evidence of the victim’s prior violence used to support the defendant’s self-defense claim because “none of the proffered evidence indicated [the victimj’s level of involvement in the prior incident” or when it occurred).

Next, Jackson argues Wayne Zaste should have been allowed to offer reputation and opinion testimony as to Smith’s violence. Any error in omitting this testimony was harmless because it “presented no facts not already before the jury.” Gregg, 451 F.3d at 936 n.7. Four other witnesses testified to Smith’s reputation for violence. And the district court admitted several specific acts of Smith’s violence. Additional testimony from Zaste on Smith’s violent, character would have been cumulative and, as the district court held, excludable under Rule 403. See United States v. Waloke, 962 F.2d 824, 830 (8th Cir. 1992).

Finally, Jackson contends the district court erred in excluding Smith’s stabbing of Jackson in 2006, when the boys were about 15 years old. This presents a closer question. Relying on United States v. Milk, 447 F.3d 593 (8th Cir. 2006), the district court excluded the incident under Rule 403, concluding that its probative value was weak because it was too remote in time, there were no independent witnesses, and no criminal charges were ever filed. Milk, however, is distinguishable because there the victim stabbed a mutual acquaintance, not the defendant, and the victim and defendant had since remained close friends. Given that the present incident involved the victim stabbing the defendant and was relevant to establishing a long-term feud between the two, the 2006 incident had probative value. Nonetheless, the district court was within its “wide discretion” in concluding that admission of this incident would necessitate a collateral mini-trial as to the facts of the stabbing and the person at fault. Waloke, 962 F.2d at 830. “[I]n the face of the admission of significant testimony regarding [Smithj’s prior acts and reputation testimony regarding [Smith]’s violent character, we cannot say that the exclusion of other, cumulative character evidence ‘had more than a slight influence on the verdict.’ ” United States v. Bordeaux, 570 F.3d 1041, 1051 (8th Cir. 2009) (quoting Gregg, 451 F.3d at 933).

C. Motion to Present Surrebuttal Closing Argument

Federal Rule of Criminal Procedure 29.1 provides that the government presents its closing argument first, the defense follows, and the government closes with its rebuttal. Jackson argues that this rule violates his constitutional right to be proven guilty beyond a reasonable doubt because it gives the government a strategic advantage to speak twice and speak last. Jackson contends that because he bore the burden of proof on his claim of self defense, he should have been afforded the opportunity to deliver a rebuttal closing argument. Similarly, in United States v. Byrd, 834 F.2d 145 (8th Cir. 1987), the defendant argued that because he carried the burden of proving his affirmative defense of insanity, he had a constitutional right to a rebuttal closing argument. Id. at 147. We rejected the argument, stating:

Rule 29.1 does not establish a constitutional doctrine, but rather, provides a uniform rule of federal practice. The purpose of the rule is to give the defendant the chance to respond to the government’s case and argument in an informed manner. Rebuttal provides the government with the opportunity to respond to defendant’s arguments. It does not allow the government to bring in new matters. Consequently, the order of argument works no injustice upon the defendant. The district court has broad discretion to ensure a fair procedure in final arguments.

Id. (internal citation omitted). For the reasons articulated by the Byrd court, we reject Jackson’s constitutional challenge to Rule 29.1.

Furthermore, the district court did not abuse its discretion in denying Jackson a rebuttal closing argument. See United States v. Miller, 621 F.3d 723, 729 (8th Cir. 2010). Where the government’s rebuttal does not exceed the scope of the defendant’s closing argument, the court need not grant defendant a surrebuttal. See United States v. Purkey, 428 F.3d 738, 759 (8th Cir. 2005). In its order denying Jackson’s pretrial motion for surrebuttal argument, the district court stated that if the government raised new matters in its rebuttal argument, it would entertain a renewed argument for surrebuttal time. But Jackson did not renew his motion after the government’s closing argument, nor did he argue on appeal that the government’s rebuttal exceeded its proper scope. In fact, Jackson never proffered to the district court specifically what he sought to rebut. Therefore, the district court did not err in denying Jackson, a surrebuttal closing argument.

D. Sentencing

The district court sentenced Jackson to 480 months imprisonment, a sentence within the Guidelines range of 360 months to life. Jackson argues the court erred in failing to consider and grant a variance based on the victim’s conduct, to consider a variance based on a forthcoming Guidelines amendment, and to grant a continuance to conduct a mental health examination of Jackson.

First, Jackson contends that the district court erred in failing to consider a variance based on the factors outlined in USSG § 5K2.10. Because Jackson failed to raise this procedural error before the district court, we review for plain error. See United States v. Black, 670 F.3d 877, 881 (8th Cir. 2012). Section 5K2.10 provides that “[i]f the victim’s wrongful conduct contributed significantly to provoking the offense behavior, the court may reduce the sentence below the guideline range to reflect the nature and circumstances of the offense.” USSG § 5K2.10. Although a defendant may seek a departure pursuant to § 5K2.10, Jackson did not request a departure before the district court; instead, he asked only that the court consider this section in support of his request for • a 'lower sentence. At sentencing, Jackson presented additional evidence of Smith’s violence beyond that presented at trial, including a 2010 prison beating of Jackson by Smith’s Mends and Smith’s felonies for stabbing and terrorizing.

Contrary to Jackson’s contention, the district court considered and explicitly rejected Jackson’s request for a variance under § 5K2.10. The district court stated that it reviewed Jackson’s sentencing memorandum and exhibits, the trial testimony, the sentencing testimony, and the arguments of counsel. At each of these stages, the court heard evidence and argument regarding Smith’s violent conduct and the application of § 5K2.10. After considering the evidence of the “long-standing family disputes” between the Smiths and the Jacksons, the court refused to grant any variances or departures. We find no error in the court’s consideration of the variance.

Second, Jackson also appears to argue that the district court erred in refusing to grant a variance based on the factors in § 5K2.10. We review the district court’s refusal to grant a downward variance for abuse of discretion. See United States v. Sethi, 702 F.3d 1076, 1081 (8th Cir. 2013). The district court found that Smith’s conduct did not contribute significantly to provoking the stabbing, stating:

You might have hated Mr. Smith, but all you had to do was drive by that day when you saw him in the ditch, flip him the bird and keep driving, you know, move on with your life. You didn’t have to stop in the ditch, jump out of the vehicle, throw your hat off and go confront him. And I understand he threw the first punch, but you brought a knife to a fist fight, and it’s not a fair fight.

To the extent that Jackson challenges the district court’s failure to grant a variance, we conclude that the court carefully considered the defendant’s and victim’s conduct preceding the offense behavior and did not abuse its discretion in refusing to grant the requested variance.

Third, Jackson argues that the district court should have considered a variance because under the forthcoming 2016 Sentencing Guidelines, his 2011 burglary conviction would no longer be a qualifying offense for career offender status. Jackson did not argue for a variance on this ground to the district court, therefore we review only for plain error. See United States v. Elodio-Benitez, 672 F.3d 584, 586 (8th Cir. 2012). Our case law makes clear that “the district court was not required to consider the pending guidelines amendment” before imposing sentence. United States v. Riehl, 779 F.3d 776, 778 (8th Cir. 2015) (per curiam) (quoting United States v. Allebach, 526 F.3d 385, 389 (8th Cir. 2008)). Nonetheless, the district court here considered the upcoming change. It reviewed the PSR, which applied the 2015 Guidelines, but recognized that burglary would be stricken from the list of qualifying offenses in 2016 and noted that this change would have “no impact on the defendant’s guidelines range” of 360 months to life. At the sentencing hearing, the government also explained this change and its lack of effect on the Guidelines range. Because the district court was aware of the forthcoming Guidelines change and the revision had no impact on Jackson’s sentencing range, we find no plain error in the district court’s failure to sua sponte consider a variance based on a proposed amendment to the Sentencing Guidelines. See Allebach, 526 F.3d at 389 (finding no error where district did consider the effect of the amendment and the sentence was “within the guidelines under the then-current guidelines and the amendment”).

Finally, Jackson argues that the district court should have granted his motion to continue his sentencing in order for him to obtain a mental health evaluation. Continuances “should be granted only when the party requesting one has shown a compelling reason. We will reverse a district court’s decision to deny a motion for a continuance only if the court abused its discretion and the moving party was prejudiced by the denial.” United States v. Jones, 643 F.3d 275, 277 (8th Cir. 2011) (quoting United States v. Lakoskey, 462 F.3d 965, 980 (8th Cir. 2006)). Jackson moved for a continuance six days prior to the sentencing hearing, arguing that his addiction issues, a 2010 head injury, and suicidal thoughts in 2014 warranted the grant of additional time to obtain a psychological evaluation. He did not argue that he lacked competence to proceed. Because the bases for the requested evaluation were well known to the defense long before sentencing, Jackson had not demonstrated a compelling reason for a continuance. Moreover, Jackson has not established that the absence of a mental health evaluation prejudiced him at sentencing. The PSR stated that Jackson had undergone a mental health evaluation in 2010, and there is no basis to conclude that another evaluation would produce different results or that those results would have led the court to impose a lesser sentence. See id. at 278.

III. Conclusion

For the reasons stated herein, we affirm.

      . The Honorable Daniel L. Hovland, United States District Judge for the District of North Dakota.

      . Several witnesses, including Jackson’s girlfriend, Jackson’s brother, the friend who cut Jackson’s hair, and Jackson himself, testified that Jackson had his hair cut on the day of the incident. See United States v. Eagle, 498 F.3d 885, 889 (8th Cir. 2007) (corroboration by other witnesses supports conclusion of harmless error).

      . Federal Rule of Evidence 404(b)(1) provides that prior acts are “not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” But, "[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).

      . Pursuant to Federal Rule of Evidence 404(a)(2)(B), "a defendant may offer evidence of an alleged victim’s pertinent trait.”

      . Federal Rule of Evidence 405(a) states:
      When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct.

      . Jackson claims for the first time on appeal that he was denied his Sixth Amendment right to compulsory process because the district court excluded witnesses that were essential to his case. Because Jackson does not identify the specific witnesses or any of the testimony they would have presented, his claim must fail. See United States v. Ladoucer, 573 F.3d 628, 635 (8th Cir. 2009) ("The defendant must show that the excluded testimony 'would have been both material and favorable to his defense.’ ” (quoting United States v. Turning Bear, 357 F.3d 730, 733 (8th Cir. 2004))).

      . Prior to either party's closing arguments, Jackson again moved for surrebuttal argument. As the scope of the government’s rebuttal was still unknown at that time, the renewal of the motion was premature.

      . In deciding whether a sentence reduction is warranted under USSG § 5K2.10, the court should consider:
      (1) The size and strength of the victim, or other relevant physical characteristics, in comparison with those of the defendant.
      (2) The persistence of the victim's conduct and any efforts by the defendant to prevent confrontation.
      (3) The danger reasonably perceived by the defendant, including the victim’s reputation for violence.
      (4) The danger actually presented to the defendant by the victim.
      (5) Any other relevant conduct by the victim that substantially contributed to the danger presented.
      (6) The proportionality and reasonableness of the defendant's response to the victim's provocation.
      USSG § 5K2.10.


author: SMITH, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Kiystal WALLACE, Defendant-Appellant
    No. 15-3496
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 16, 2016
    Filed: March 28, 2017

      Angela Sue Jegley, Erin Siobhan O’Leary, Assistant U.S. Attorneys, U.S. ATTORNEYS OFFICE, Eastern District of Arkansas, Little Rock, AR, for Plaintiff-Appellee.
    Nicole Lybrand, Lisa Peters, Assistant Federal Public Defender, FEDERAL PUBLIC DEFENDER’S OFFICE, Little Rock, AR, for Defendant-Appellant.
    Krystal Wallace, Pro Se.
    Before WOLLMAN and SMITH, Circuit Judges, and WRIGHT, District Judge.

      . The Honorable Lavenski R. Smith became Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 11, 2017.

      . The Honorable Wilhelmina M. Wright, United States District Judge for the District of Minnesota, sitting by designation.

   SMITH, Circuit Judge.

A jury convicted Krystal Wallace of assaulting a federal officer with her car. At trial, Wallace sought to admit her videotaped statement about the incident, but the district court excluded it as cumulative. At sentencing, the court calculated Wallace’s Guidelines range as 188-235 months’ imprisonment, but it varied downward to 48 months. Wallace contends that there was not enough evidence to convict her, that her videotaped statement should not have been excluded, and that the district court erred in calculating her Guidelines range and imposed an unreasonable sentence. We affirm.

I. Background

A. The Veterans Administration Incident

On March 3, 2010, Wallace drove her sister Kimberly to the Veterans Administration (VA) hospital in Little Rock. They were driving a friend’s 1990s Honda Accord. Two of Wallace’s daughters and her ex-boyfriend accompanied them. Wallace believed that Kimberly wanted to visit her friend who worked there as a security guard. They arrived around 2:30 p.m. and parked. Kimberly got out of the car and went inside. Wallace and her ex-boyfriend also got out and began to argue. The ex-boyfriend eventually left on foot. Wallace got back in the car. Then Kimberly returned to the car visibly shaken. She got in and said, “Let’s go.”

As Wallace began to backup, she saw a man approaching from the right. Wallace heard someone yelling, “Stop the car, turn off the car.” The man came up to the front of the car and jumped on the hood. Wallace assumed that the man was Kimberly’s security-guard Mend. She believed that he posed a threat to Kimberly because he acted aggressively. Wallace’s children began screaming, and Wallace exclaimed to the man: “Get off the car, are you crazy, get the hell off my car.” The man asked if Wallace was going to stop the car. She again told him to get off the car but agreed to stop. According to Wallace, at that point the man got off the car, and she resumed backing out. But the man jumped back onto her hood. Wallace continued backing out anyway and then abruptly stopped, causing the man to slide off the hood. Wallace did not check on the man’s condition but immediately sped away fropi the VA.

Wallace later learned that the man on her hood was a federal police officer named Mark Atlas. Atlas was trying to get Wallace to stop because he was pursuing Kimberly, whom he suspected was panhandling. Atlas testified that when someone reported the possible panhandling, he followed Kimberly toward the car and said: “Stop. Police. Stop.” Kimberly kept walking and got in Wallace’s car. Atlas then stepped in front of the car and told Wallace, the driver, to “Shut the vehicle off. Get out of the vehicle. Police.” He was yelling and banging on the hood. When Wallace did not comply, Atlas grabbed his gun. When he saw the kids, though, he holstered it and told Wallace again to shut the car down. But the car lunged forward toward Atlas, who, in his words “instinctively jumped, and I landed on the hood.” Atlas jumped on the hood to avoid being struck as “[t]he vehicle came at me.”

Atlas injured his left side when he tumbled from Wallace’s car. He experienced severe pain and some bruising. The emergency room doctor prescribed a narcotic for the pain and advised over-the-counter muscle relaxers. Atlas was at the hospital no more than four hours.

After leaving the VA, Wallace had time to consider the events and her actions. Within an hour, she drove to a police station and gave a voluntary statement recounting the incident. She told a VA investigator that she was not trying to hurt anyone. She explained her behavior as panic caused by misunderstanding the actions of the man who jumped on her car while her kids were in the backseat.

B. The Criminal Case

The government charged Wallace with violating 18 U.S.C. § 111(a)(1) and (b) by assaulting an on-duty federal officer with a deadly or dangerous weapon (her car) and causing bodily injury. Before trial, the government asked the court to suppress, as hearsay, a videotaped statement that Wallace gave at the police station. The district court granted the motion, but it clarified on the morning of trial that its ruling was “preliminary ... and subject to change based on what happens during the trial.” Wallace testified at trial. She talked about her statement to the VA investigator and introduced a short written version of her statement as evidence. Then Wallace moved to introduce the whole videotaped statement as well. The government opposed the motion, arguing that the video would improperly bolster Wallace’s testimony and would be cumulative of the testimony that she had already given. The district court sustained the objection. Wallace moved for acquittal at the close of the government’s case and her own, but the court denied those motions. The jury found Wallace guilty.

At sentencing, the court calculated Wallace’s Guidelines range at 188-235 months’ imprisonment. The government agreed with Wallace that this range was too harsh. The court varied downward to 48 months. Wallace appeals the denial of her acquittal motions, the exclusion of her videotaped statement, and the calculation and reasonableness of her sentence.

II. Discussion

A. Acquittal Motions

We review the denial of Wallace’s acquittal motions de novo. United States v. Drapeau, 644 F.3d 646, 652 (8th Cir. 2011). If there is substantial evidence in the record to support the jury’s verdict, we will affirm. Id. Substantial evidence means evidence strong enough to prove guilt beyond a reasonable doubt. Id. We look at the record, though, in the light most favorable to the government. Id. We do not reweigh evidence or reassess credibility. United States v. Schnapp, 322 F.3d 564, 572 (8th Cir. 2003). And we draw reasonable inferences in favor of the jury’s verdict, not in favor of the defendant. United States v. Williams, 647 F.3d 855, 859 (8th Cir. 2011).

To convict Wallace of violating 18 U.S.C. § 111(a) and (b) in this case, the jury had to find (1) that Wallace forcibly assaulted Atlas with a deadly or dangerous weapon while Atlas was on duty; (2) that Wallace did so voluntarily and intentionally; and (3) that the assault resulted in bodily injury. See Drapeau, 644 F.3d at 652. This elements formulation is peculiar to this case. The indictment charged that Wallace violated “Section[] 111(a)(1)(b)” by committing the assault “using a deadly and dangerous weapon and inflicting bodily injury,” and the jury was told that it had to find a weapon and bodily injury. The statute, however, requires a weapon or bodily injury. We nevertheless hold the government to the elements charged in its indictment.

Wallace contends that the government’s proof failed to establish that she acted voluntarily and intentionally and that she used her car as a deadly or dangerous weapon. The jury faced competing accounts of the events at the VA. And the verdict reflects that the jury credited Atlas’s account rather than Wallace’s. Atlas described Wallace as purposely driving toward him and forcing him to leap onto the car hood to avoid being struck or run over. If believed, Atlas’s account provides sufficient proof that Wallace acted voluntarily and intentionally.

We also conclude that sufficient evidence establishes that Wallace used her car as a deadly or dangerous weapon. “[F]or a car to qualify as a deadly weapon, the defendant must use it as a deadly weapon and not simply as a mode of transportation.” United States v. Arrington, 309 F.3d 40, 45 (D.C. Cir. 2002). For instance, using a car “purely for flight” would not trigger liability under § 111(b). Id. Wallace’s case is on the margins of assault-by-vehicle. She did not shift her car into drive and. accelerate while an officer was reaching through the window, and then drag the officer 50 feet. Cf. id. at 42. Nor did she accelerate toward an impromptu marshals’ road block. Cf. United States v. Yates, 304 F.3d 818, 820 (8th Cir. 2002). The jury could nevertheless have reasonably found that by driving toward Atlas and forcing him to jump on the hood to avoid being hit, Wallace used the car as something other than transportation — that she used it as a deadly or dangerous weapon. See Arrington, 309 F.3d at 46 (“Conviction requires both the intent to commit one of the acts specified in § 111(a), and the intent to use the object that constitutes the deadly weapon.”).

B. Exclusion of the Videotaped Statement

We review the district court’s exclusion of Wallace’s videotaped statement for abuse of discretion. United States v. Harris-Thompson, 751 F.3d 590, 600 (8th Cir. 2014). Reversal is warranted only if the court’s erroneous exclusion affected Wallace’s substantial rights or we believe an error more than slightly influenced the verdict. Id.

A court may properly exclude needlessly cumulative evidence. Fed. R. Evid. 403; see also Harris-Thompson, 751 F.3d at 602. This includes “cumulative evidence bearing solely on credibility.” United States v. Dennis, 625 F.2d 782, 797 (8th Cir. 1980). A court also has “ample discretion to exclude prior consistent statements that are cumulative accounts of an event.” Fed. R. Evid. 801 advisory' committee’s note to 2014-amendment.

At trial, Wallace recounted her voluntary statement to the VA investigator. Her written statement was also admitted into evidence. The district court excluded the videotaped statement primarily because it was cumulative when offered at trial. Wallace has not distinguished the substance of the story she told on video from the one she told at trial. Instead, she argues that the video would have given the jury the opportunity to see her demeanor, body language, and mannerisms soon after the incident. She contends that this would have enabled the jury to consider her credibility within an hour of the event rather than four years later at trial.

We discern no abuse of discretion. Both admitting and excluding the video were within the district court’s range of choice. See Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984). The court properly concluded that the probative value of additional relevant evidence of intent and credibility was substantially outweighed by its cumulative nature.

Wallace also contends that the court’s pretrial exclusion of the video on hearsay grounds — before it ruled at trial that the video was cumulative — forced her to testify and foreclosed meaningful cross-examination. But Walláce offers no convincing authority or argument that inadmissible hearsay becomes admissible when an available defendant-witness prefers not to testify. Wallace faced a strategic dilemma, not a constitutional one. If the trial court’s pretrial ruling was as controlling as Wallace suggests, then she could have refused to testify and appealed that ruling after the verdict. See Lawrey v. Good Samaritan Hosp., 751 F.3d 947, 952 (8th Cir. 2014) (noting that a definitive grant of a motion in limine preserves appellate review). Instead, Wallace chose to take the stand and offer essentially the same evidence as that presented by the videotaped statement before seeking to admit the video. By doing this, Wallace risked Rule 403 exclusion based on the video’s probative value being outweighed by its cumulative nature. Moreover, even if excluding the video was error, we are not convinced that Wallace’s substantial rights or the verdict were affected. It is far from certain that seeing another version of Wallace’s account, albeit nearer to the event, would have caused the jury to discredit Atlas.

C. Sentencing

Wallace also appeals the district court’s degree-of-injury finding, its Guidelines calculation, and the reasonableness of her sentence.

1. Degree-of-injury Finding

We review sentencing fact findings for clear error. United States v. Jenkins, 578 F.3d 745, 749 (8th Cir. 2009). If a finding is plausible in light of the whole record, we will not reverse it. United States v. Tucker, 243 F.3d 499, 506 (8th Cir. 2001). This is true even if we would have found differently in the first instance, and it is especially true if the finding is credibility-based. Id.

Wallace raises several sentencing errors flowing from the district court’s finding that Atlas suffered more than “serious bodily injury” but less than “permanent or life threatening bodily injury,” as those terms are used in the Guidelines. She argues that Atlas’s 2015 out-of-court statement relayed by a probation officer at sentencing should not have been admitted to establish the seriousness of his injuries. In a phone call, Atlas told the officer that he had lost some use of his leg and experienced great pain. Atlas also claimed, according to the officer, that he now walked with a limp, was still taking pain medication, and had tried rehabilitation therapy without success.

Hearsay — even uncorroborated hearsay — is admissible at sentencing if it has “sufficient indicia of reliability” and the defendant is allowed to rebut or explain it. United States v. Garcia, 774 F.3d 472, 475 (8th Cir. 2014) (per curiam). Atlas’s hearsay account of his 2015 condition was backed by the testimony of witnesses who saw him injured in 2010, which allays any reliability concerns. One trial witness testified that Atlas was thrown ten feet off of Wallace’s car and “rolled across the pavement holding his leg, you know, and in pain.” He was “rolling back and forth and in pain. He was in a lot of pain.” An officer at the scene said Atlas was holding his leg, “and it seemed like he was in a lot of pain.” Atlas said that on a scale of one to ten, the pain was a ten — “10 is the worse part and that was my left leg, my back, my hip, the whole left side.” He had bruises on his torso, his leg, and his hip, as well as knee pain. A residual limp and nagging pain in 2015 correlate with Atlas’s 2010 condition. Also, Wallace cross-examined the probation officer and chose not to examine Atlas, who was present at sentencing. Admitting Atlas’s 2015 hearsay statement was not an abuse of discretion.

2. Guidelines Calculation

We review the interpretation and application of the Sentencing Guidelines de novo. Jenkins, 578 F.3d at 749. Wallace contends that the district court erred in three ways when calculating her Guidelines range. She first contends that the court erred by applying the offense-conduct guideline for aggravated assault, § 2A2.2, rather than the one for obstructing or impeding officers, § 2A2.4. Wallace argues that § 2A2.2 applies where the offense conduct. involves “serious bodily injury,” and that she was not charged or convicted of causing that level of injury.But § 2A2.2 may be applied on another basis: when the offense conduct involves “a dangerous weapon with intent to cause bodily injury ... with that weapon.” U.S.S.G. § 2A2.2 cmt. n.l. This basis for applying § 2A2.2 matches Wallace’s indictment and conviction. See U.S.S.G. § lB1.2(a) (instructing courts to select an offense-conduct Guideline by reference to the indictment). The district court did not err applying § 2A2.2.

Wallace’s next contention — that the court erred in applying a six-level official-victim enhancement under § 3A1.2(c)(l)— depends on her argument that § 2A2.4, rather than § 2A2.2, is the proper offense-conduct guideline. Because § 2A2.2 is the proper offense-conduct guideline, this argument fails.

Wallace last contends that the district court erred in applying a six-level enhancement under § 2A2.2(b)(3)(E) because Atlas sustained more than “serious bodily injury” but less than “permanent or life-threatening bodily injury.” According to Wallace, this was a double-counting error. The harm punished by the enhancement, the argument goes, was already punished under the base offense level, because to invoke § 2A2.2 in the first place, the court had to find that Atlas sustained “serious bodily injury.” As we explained earlier, however, the court did not apply § 2A2.2 because Wallace caused “serious bodily injury”; it applied § 2A2.2 because Wallace used “a dangerous weapon with intent to cause bodily injury.” U.S.S.G. § 2A2.2 cmt. n.l. The district court’s sentence is therefore procedurally sound.

3. Reasonableness

We review the substantive reasonableness of Wallace’s sentence for abuse of discretion. United States v. Merrell, 842 F.3d 577, 584 (8th Cir. 2016). Wallace argues that the district court mis-weighed the sentencing factors outlined in 18 U.S.C. § 3553(a). She points out that she did not act maliciously; that Atlas’s injuries were minor; that she went quickly to authorities; that she does not need deterrence; and that the public does not need protecting from her. These points do not establish that the district court ignored an important factor or relied on an improper one. Nor do we discern a clear error of judgment in the court’s weighing of the factors. See United States v. Lozoya, 623 F.3d 624, 626-27 (8th Cir. 2010). Given this record, we cannot conclude that a 48-month sentence achieved through a 140-month downward variance was substantively unreasonable.

III. Conclusion

Accordingly, we affirm the district court’s judgment.

      .The Honorable James J. Moody, Jr., United States District Judge for the Eastern District of Arkansas.

      . We deny Wallace's motion to add the video to the record. We do, however, accept Wallace’s word about what the video would show.


text:
    Gary THOMPSON; Dalton Elliott; Gary Scott Manning; Alicia Hardy, Plaintiffs-Appellants v. Andy SHOCK, Individually and in his Official Capacity as Faulkner County Sheriff, Defendant-Appellee
    No. 16-1643
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 15, 2016
    Filed: March 28, 2017

      Lucien Ramseur Gillham, Luther Oneal Sutter, SUTTER & GILLHAM, Benton, AR, for Plaintiffs-Appellants.
    Jason E. Owens, RAINWATER & HOLT, Little Rock, AR, for Defendant-Appellee.
    Before WOLLMAN and SMITH, Circuit Judges, and WRIGHT, District Judge.

      . The Honorable Lavenski R. Smith became Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 11, 2017.

      . The Honorable Wilhelmina M. Wright, United States District Judge for the District of Minnesota, sitting by designation.

   SMITH, Circuit Judge.

Gary Thompson, a former transport deputy in Faulkner County, Arkansas, sued Sheriff Andy Shock, in his individual and official capacities, for unlawful employment termination under state and federal law. He brought his federal claim pursuant to 42 U.S.C. § 1983 for the deprivation of his First Amendment right of free association. The district court dismissed the federal claim, granting Sheriff Shock qualified immunity in his individual capacity and holding that Sheriff Shock in his official capacity was not a policymaker for purposes of Faulkner County’s liability. The district court then declined supplemental jurisdiction over the remaining state-law claims. Thompson appeals, seeking reinstatement of his claims against Sheriff Shock. Upon review, we affirm the district court’s dismissal of Thompson’s claim against Sheriff Shock in his official capacity, but we vacate the finding of qualified immunity for Sheriff Shock in his individual capacity and remand that issue for analysis under a different line of precedent.

I. Background

In 2012, while employed as a deputy in the Faulkner County Sheriffs Office, Andy Shock ran for Sheriff. One of Shock’s coworkers in the office, Gary Thompson, did not support his candidacy. Thompson publicly endorsed Shock’s main rival, Tommy Earnhart. While off-duty, Thompson campaigned for Earnhart by attending fundraisers, placing campaign signs in his yard, and wearing a campaign T-shirt. This campaigning did not interfere with Thompson’s work activities, nor does the record reflect that Thompson made any public statements regarding the Sheriffs Office or other issues of public concern. After Shock discovered that Thompson supported his rival, the two met privately; Thompson assured Shock that he supported Earnhart as a personal friend and that he would be willing to work for Shock if he won the election. Thompson alleges that Shock told others that, as Sheriff, Shock would terminate current office employees that did not support his candidacy.

In November 2012, after Shock won the election, Thompson received a letter from newly elected Sheriff Shock notifying him of his “non-selection” for employment in January 2013. The letter outlined a grievance procedure providing Thompson a pre-deprivation hearing to contest his termination. Thompson requested the hearing, and during the proceedings, Sheriff Shock testified that he chose not to select Thompson because of his “lack of good work ethic.” The record reflects no discipline procedures or negative performance evaluations regarding Thompson before he received this letter of non-selection.

Thompson and three other non-selected employees brought this suit in 2013, alleging violations of their rights under the Arkansas Political Freedom Act, the Arkansas Constitution, and the First Amendment of the United States Constitution. The district court granted summary judgment for Shock in his individual and official capacities. The district court analyzed the First Amendment claim under the formula set out in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The district court determined that Thompson’s claimed First Amendment right was not clearly established under the Pickering-Connick test, granted qualified immunity to Sheriff Shock in his individual capacity, and dismissed without prejudice the related state-law claims. The district court also dismissed Thompson’s claims against Shock in his official capacity because Thompson failed to prove that Sheriff Shock was deliberately indifferent to his constitutional rights. Thompson moved to alter or amend the judgment, but the district court denied the motion. The court did, however, revise its reasoning on the official-capacity claim. The court shifted the basis for its decision to Sheriff Shock’s lack of final policymaking authority in employment matters. Thompson appeals.

II. Discussion

“We review grants of summary judgment de novo.” Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1207 (8th Cir. 2013). In a § 1983 action, we will reverse an award of summary judgment in favor of a public official in his individual capacity only if a reasonable jury could find his actions under the color of state law “violated ‘a right secured by the Constitution and laws of the United States.’ ” Id. (quoting Cook v. City of Bella Villa, 582 F.3d 840, 848 (8th Cir. 2009)). We will reverse an award of summary judgment in favor of a public official acting in his official capacity only if a reasonable jury could find that the constitutional violation was committed “pursuant to official municipal policy of some nature.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Thompson appeals the grant of summary judgment to Sheriff Shock in both capacities.

A. Qualified Immunity

Qualified immunity shields a government official acting in his individual capacity from liability “unless his conduct violates ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” New v. Denver, 787 F.3d 895, 899 (8th Cir. 2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Federal courts conduct a two-step inquiry into the application of qualified immunity: “(1) whether the facts alleged demonstrate a violation of the employee’s constitutional right and (2) whether that right was clearly established at the time of the employee’s firing.” Anzaldua v. Ne. Ambulance & Fire Prot. Dist., 793 F.3d 822, 832 (8th Cir. 2015). Qualified immunity protects the reasonable decisions of government actors except in cases of plain incompetence or knowing violation of the law. New, 787 F.3d at 900.

“[A] public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment.” Connick, 461 U.S. at 140, 103 S.Ct. 1684. Nevertheless, “the State’s interests as an employer in regulating the speech of its employees ‘differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.’ ” Id. (quoting Pickering, 391 U.S. at 568, 88 S.Ct. 1731). “A State may not condition public employment on an employee’s exercise of his or her First Amendment rights.” O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 717, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996). “Absent some reasonably appropriate requirement, government may not make public employment subject to the express condition of political beliefs or prescribed expression.” Id. “With a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate.” Heffernan v. City of Paterson, — U.S. —, 136 S.Ct. 1412, 1417, 194 L.Ed.2d 508 (2016).

The Supreme Court has developed two lines of cases that assess how to balance the First Amendment rights of government employees with the need of government employers to operate efficiently. See Hinshaw v. Smith, 436 F.3d 997, 1005-06 (8th Cir. 2006). For “overt expressive conduct,” federal courts apply the balancing test as found in the line of cases following Pickering and Connick. Id. at 1005. The typical Pickering-Connick case involves a government employee causing workplace disruption by speaking as a citizen on a matter of public concern, followed by government action adversely affecting the employee’s job. See Anzaldua, 793 F.3d at 835-36 (analyzing under Pickering-Connick the termination of a Fire District employee after the employee emailed a local reporter about department conditions). This test includes various interrelated factors:

(1) the need for harmony in the work place; (2) whether the government’s responsibilities require a close working relationship; (3) the time, manner, and place of the speech; (4) the context in which the dispute arose; (5) the degree of public interest in the speech; and (6) whether the speech impeded the employee’s ability to perform his or her duties.

Id. at 835. The Pickering-Connick test provides flexible weighing of the case-specific facts to balance the interests of the government with those of the employee.

For “pure patronage dismissals,” federal courts apply the narrow-justification test outlined in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Hinshaw, 436 F.3d at 1005. The typical Elrod-Branti case involves the dismissal of an employee because of his or her political affiliations or support for certain candidates. See DePriest v. Milligan, 823 F.3d 1179, 1184 (8th Cir. 2016) (analyzing under Elrod-Branti the dismissal of the Chief Deputy after the election of the new Circuit Clerk). “[A] dismissal solely on account of an employee’s political affiliation violates the First Amendment unless the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Id. (internal quotation marks omitted) (quoting Langley v. Hot Spring Cty., 393 F.3d 814, 817 (8th Cir. 2005)). Under Elrod-Branti, the court cabins its inquiry to the political-affiliation requirement itself, without the need to do the Pickering-Connick balancing analysis. O’Hare Truck Serv., Inc., 518 U.S. at 719, 116 S.Ct. 2353; Hinshaw, 436 F.3d at 1005 (“We have recognized that in cases like Elrod and Branti involving pure patronage dismissals, the individual and government interests are essentially fixed, so that there is no need to perform a Pickering balance.”).

In addition, many cases present an “intermixed” scenario in which a policymak-ing employee receives an adverse employment action based on “specific instances of the employee’s speech or expression.” O’Hare Truck Serv., Inc., 518 U.S. at 719, 116 S.Ct. 2353. In Hinshaw, we applied the Pickering-Connick test to the case of an executive director of a state agency who alleged termination in violation of her First Amendment rights. 436 F.3d at 1006-07. Hinshaw, a policymaking employee, spoke out against the policies promulgated by the agency’s Board of Trustees, and she was later disciplined. Id. at 1007. We stated that despite Hinshaw’s First Amendment rights as a private citizen, her position as a policymaking employee “did not give her carte blanche to ignore her employer’s directives and miscommunicate the Board’s views.” Id. We determined that the factors in the Board’s favor “outweigh[ed] whatever interest Hinshaw may have had in communicating her own personal views,” noting that the Board had a “legitimate expectation that its executive director [would] not undermine the Board’s efforts.” Id. Thus, “where speech is intermixed with a political affiliation requirement, Pickering balancing is appropriate.” Id. at 1006.

To summarize, if an employee is discharged because of his or her expressive conduct, we apply the Pickering-Connick test. Id. at 1005. If an employee is discharged because of his or her political affiliation, we apply the Elrod-Branti test. Id. And when a political-affiliation employee gets discharged for his or her expressive conduct, we apply Pickering-Connick. Id. at 1006.

In granting qualified immunity to Sheriff Shock, the district court relied on Nord v. Walsh County, 757 F.3d 734 (8th Cir. 2014). Nord, a deputy sheriff in Walsh County who ran for sheriff, was terminated the day after he lost the election. Id. at 738. As a candidate, Nord made multiple public statements regarding the current sheriffs health, his wife, and his future political aspirations. Id. at 742. He sued the re-elected sheriff alleging that “he was fired in retaliation for the statements he made along the campaign trail.” Id. at 738. Because this presented an “intermixed case” including both public statements and political affiliation, we declined to apply Elrod-Branti and instead applied Pickering-Connick to determine whether the employer was justified in terminating Nord. Id. at 744. Thompson’s case presents a different scenario. Unlike Nord, Thompson made no public statements regarding the Sheriffs Office; he simply supported an opposing candidate. “In such cases, the hiring authority must demonstrate that party affiliation is an appropriate and reasonable requirement for the effective performance of the public office involved.... This circuit has held that ‘[i]f discharge solely because of party affiliation is found, this will involve applying the narrow [Elrod-Branti] justification test....’” Id. (first alteration in original) (quoting Hinshaw, 436 F.3d at 1005).

For Thompson’s case, we choose to follow Heffeman v. City of Paterson— a recent Supreme Court decision published after the district court filed its judgment — to determine the best analytical framework. 186 S.Ct. 1412. Heffernan, a eity police officer, retrieved a campaign sign on behalf of his mother, and the police department fired him for “overt involvement” in the campaign. Id. at 1416. Using the Elrod-Branti analysis, the Supreme Court determined that a government employer could violate an employee’s First Amendment rights even if acting under the mistaken belief that the employee is affiliated with a certain candidate. Id. at 1419. Thompson, like Heffernan, suffered an adverse employment decision not because of his overt expressive conduct but because of his affiliation with the “wrong” candidate. When the constitutional right at issue involves “joining, working for or contributing to the political party and candidates of [the employee’s] choice,” we apply the Elrod-Branti test. Rutan v. Republican Party of Ill., 497 U.S. 62, 69, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). Accordingly, because the district court applied a different test, we remand the question of qualified immunity to the district court for analysis under Elrod-Branti. See Fink v. Union Cent. Life Ins. Co., 65 F.3d 722, 724 (8th Cir. 1995) (remanding the issue of excusable neglect to the district court after Supreme Court precedent altered the analytical framework).

B. Municipality Liability

Under § 1983, a municipality cannot be held liable for the tortious conduct of an employee, unless the employee acts pursuant to a municipality’s “official policy.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986).

The “official policy” requirement was intended to distinguish acts of the munici-polity from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible....
[A] municipality may be liable under § 1983 for a single decision by its properly constituted legislative body — whether or not that body had taken similar action in the past or intended to do so in the future — because even a single decision by such a body unquestionably constitutes an act of official government policy.

Id. at 479-80, 106 S.Ct. 1292. To analyze whether a single decision of a government official constitutes an official policy, we look to state law to determine whether the government official possesses “final policy-making authority in the area in which the challenged conduct occurred.” Williams v. Butler, 863 F.2d 1398, 1401 (8th Cir. 1988). “[T]he County Sheriff may have discretion to hire and fire employees without also being the county official responsible for establishing county employment policy.” Pembaur, 475 U.S. at 483 n.12, 106 S.Ct. 1292. If a county’s employment policy is set by a different municipal body, “only that body’s decisions would provide a basis for county liability.” Id. To determine whether a government official serves as the final policymaker, we consult two sources: “(1) ‘state and local positive law5 and (2) state and local ‘ “custom or usage” having the force of law.’ ” Atkinson, 709 F.3d at 1215 (quoting Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989)). Because Thompson complains only of a single action and not the customs of Faulkner County, we will analyze only the policy-making authority granted under positive law.

Thompson argues that as a matter of positive Arkansas law, Sheriff Shock possessed the final policymaking authority in matters of employment for the Sheriffs Office. He relies on the Arkansas Constitution and the Arkansas Code, which generically give the county judge power to hire employees “except those persons employed by other elected officials of the county.” Ark. Const, amend. 55, § 3; Ark. Code. Ann. § 14-14-1101(a)(6). This exception, Thompson argues, places final employment policymaking authority in elected officials for their respective offices. See Ark. Code Ann. § 14-14-1102(b)(5)(B)(ii)(b) (“The jurisdiction to purchase the labor of an individual for salary or wages employed by other elected officials of the county shall be vested in each respective elected official.”). Thompson’s argument, however, ignores the statutory power of the quorum court to review employment decisions of county employers:

[A] quorum court may exercise any legislative authority with regard to employee policy and practices of a general nature, including, but not limited to, establishment of general vacation and sick leave policies, general office hour policies, general policies with reference to nepotism, or general policies to be applicable in the hiring of county employees. Legislation promulgated by a quorum court dealing with matters of employee policy and practices shall be applicable only to employees of the county and shall not apply to the elected county officers of the county. Legislation applying to employee policy practices shall be only of a general nature and shall be uniform in application to all employees of the county.

Ark. Code Ann. § 14-14-805(2). By Arkansas statute, the quorum court may be invested with the ability to exercise final authority regarding “general policies to be applicable in the hiring of county employees.” Id. As the district court noted and as the facts show, Faulkner County provided a grievance procedure through the quorum court to address unconstitutional employment decisions made by the County Sheriff. In fact, Thompson used this procedure to have his employment decision reviewed. Faulkner County’s retention of “the right of review” through its grievance procedure is inconsistent with “an absolute delegation of authority” by the County to its Sheriff. See Williams, 863 F.2d at 1402. An incomplete delegation of authority “will not result in municipal liability.” Id.

Thompson also asserts that Sheriff Shock’s position as a final policymaker has been settled by the Arkansas Supreme Court. He relies on Crawford County v. Jones, which states: “[I]t is patently unreasonable to hold that a county official, such as the assessor, when acting in her capacity as an elected official, could not create liability for the county by her actions.” 365 Ark. 585, 232 S.W.3d 433, 440 (2006). Crawford County, however, does not support Thompson’s assertion. First, the Crawford County opinion addresses a state-law breach-of-contract action rather than a federal § 1983 action. Id. Second, the facts of Crawford County actually support the absence of final policymaking authority for the County Sheriff. The Crawford County Quorum Court, sitting as a grievance committee, ordered the plaintiff to be reinstated after a wrongful discharge, but the county assessor refused to do so. Id. at 435-37. In reviewing a jury verdict in favor of the plaintiff, the Arkansas Supreme Court found substantial evidence to support a violation of “the policy adopted by the County.” Id. at 439. The court then imputed the violation of the assessor to the county, not because the assessor acted as a final policymaker, but because the assessor acted as an agent of the county’s final policymaker. Id. at 439-40. The Arkansas Supreme Court did not find that the county assessor was the final policymaker for employment purposes, id. at 440, and similarly, we do not hold Sheriff Shock to be the final policymaker in this case.

Our review of Arkansas law and the policies promulgated by Faulkner County reveal that Sheriff Shock did not act as a final policymaker in the employment decisions of the Faulkner County Sheriffs Office because employment decisions made by Sheriff Shock were subject to review by the quorum court. We therefore affirm the district court’s grant of summary judgment to Sheriff Shock in his official capacity-

ill. Conclusion

We vacate the district court’s grant of summary judgment in favor of Sheriff Shock in his individual capacity and remand the issue of qualified immunity to be addressed applying the analysis in the Elrod-Branti line of eases. We affirm the district court’s grant of summary judgment in favor of Sheriff Shock in his official capacity.

      . The Supreme Court declined to express views on the possibility that the plaintiffs employers terminated him because of a neutral police policy that prohibited overt campaign involvement. Heffernan, 136 S.Ct. at 1419. This is not at issue in this case because Arkansas law prohibits the deprivation of a government employee's right "to express his or her opinion as a citizen on political subjects.” Ark. Code Ann. § 21-1-207.