author: MURPHY, Circuit Judge. KELLY, Circuit Judge, MONTGOMERY, District Judge,

text:
    Jerry Lee FAIDLEY, Plaintiff-Appellant v. UNITED PARCEL SERVICE OF AMERICA, INC., Defendant-Appellee
    No. 16-1073
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 15, 2016
    Filed: April 4, 2017
    Rehearing En Banc Granted, Opinion Vacated June 16, 2017

      Counsel who presented argument and appeared on the brief on behalf of the appellant was Mark D. Sherinian, of Des Moines, IA. The following attorney(s) appeared on the appellant brief; Melissa C. Hasso, of Des Moines, IA.
    Counsel who presented argument and appeared on the brief on behalf of the appellee was Bradley M. Bakker, of Saint Louis, MO. The following attorney(s) appeared on the appellee brief; Laurence P. Tucker and Jeffrey T. McPherson, of Saint Louis, MO.
    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.

   MURPHY, Circuit Judge.

Plaintiff Jerry Faidley worked as a delivery driver for defendant United Parcel Service of America (UPS). His doctor restricted his work activity after he hurt his back, and UPS did not offer him another full time position that he was able to perform. He sued for disability discrimination and retaliation. The district court granted summary judgment to UPS on all claims. Faidley appeals, and we affirm in part, reverse in part, and remand.

I.

Jerry Faidley worked for UPS as a package delivery driver. After he injured his back twice and had hip surgery, his doctor restricted his work day to eight hours. When UPS learned of this restriction in 2012, it prohibited him from working as a delivery driver because that position requires employees able to work nine and a half hours per day. His manager also told him that his career at UPS was over because the company would not employ someone with a permanent restriction.

Faidley went on unpaid leave and sought a disability accommodation. He proposed working either as a delivery driver with a daily limit of eight hours or at a less physically demanding position without accommodations. One of the other jobs UPS considered was feeder driver, which involves driving trailers between UPS locations and is less physically strenuous than the delivery driver role. The company did not offer Faidley this position, however, because it was unavailable at the time. UPS then offered him a part time job that would have reduced his seniority. He declined to accept that position and sued UPS under the Americans with Disabilities Act (ADA) and Iowa Civil Rights Act (ICRA) for a failure to accommodate his disability.

Several months later, Faidley’s doctor issued a new restriction that allowed him to work with no limit on his hours at any job other than delivery driver. In early 2013 Faidley found a new position at UPS as a combined pre loader and loader. In the pre loader role, he loaded packages into delivery trucks. As a loader, he stacked packages in semi trailers. This combined role proved too physically demanding and caused Faidley a great deal of pain. His doctor then limited him to working four hours per day for five weeks as a pre loader rather than a loader. Faid-ley asked to work a reduced schedule but UPS refused because he had previously used all of his available time in its temporary alternative work program.

Faidley later received another set of work restrictions. UPS then reinitiated the accommodation process, but no full time positions that fit his restrictions were available. UPS offered him a part time position that he declined. Faidley retired later that year. He then sued UPS a second time under the ICRA for disability discrimination and retaliation arising from its alleged failure to accommodate him in 2013. The district court consolidated the 2012 and 2013 actions and granted summary judgment to UPS. Faidley appeals.

II.

We review the “grant of summary judgment de novo, viewing the facts in the light most favorable to the nonmov-ing party and making every reasonable inference in his favor.” McPherson v. O’Reilly Auto., Inc., 491 F.3d 726, 730 (8th Cir. 2007). Summary judgment is warranted “if the record shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id.; see also Torgerson v. City of Rochester, 643 F.3d 1031, 1042-43 (8th Cir. 2011) (en banc).

A.

We first address Faidley’s 2012 disability discrimination claim. We use the same standards to analyze ADA and ICRA discrimination claims. Tjernagel v. Gates Corp., 533 F.3d 666, 671 (8th Cir. 2008). The ADA prohibits private employers from discriminating against qualified individuals based on disability. Kallail v. Alliant Energy Corp. Servs., Inc., 691 F.3d 925, 930 (8th Cir. 2012). Discrimination includes a failure to provide “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” Id. (quoting 42 U.S.C. § 12112(b)(5)(A)). To prove disability discrimination, an employee must establish “that he (1)' has a disability within the meaning of the ADA, (2) is a qualified individual under the ADA, and (3) suffered an adverse employment action as a result of the disability.” Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 711 (8th Cir. 2003) (internal quotation marks omitted). Neither party disputes that Faidley was disabled and thus satisfies the first element of this claim.

With respect to the second element, an employee is a qualified individual under the ADA if he “(1) possesses] the requisite skill, education, experience, and training for [his] position; and (2) [is] able to perform the essential job functions, with or without reasonable accommodation.” Kallail, 691 F.3d at 930 (quoting Fenney, 327 F.3d at 712). Essential job functions “are the fundamental duties of the job, but not its marginal functions.” Id.

Faidley claims to have been qualified to perform the jobs of feeder driver and delivery driver in 2012. The district court correctly concluded as a matter of law that Faidley was not qualified to perform the essential job functions for the delivery driver position. That job required the ability to work more than eight hours per day, and the record is clear that Faid-ley was limited to working no more than eight hours per day.

We conclude, however, that the district court erred by determining as a matter of law that Faidley was unable to perform the .essential job functions of the feeder driver position. UPS claims that Faidley was unqualified for this position because it sometimes required working more than eight hours per day. A good deal of evidence supports this claim. Faid-ley referred in his affidavit to “the required 9.5 hours per day for that position.” Human resources manager Vince Blood wrote on a 2012 accommodation worksheet, however, that Faidley “preliminarily appear[ed] capable of performing the essential job functions” of the feeder driver role. On the same form, he wrote that Faidley could work no more than eight hours per day. We conclude that is sufficient to create a genuine issue of material fact on Faidley’s claim that he was qualified to perform the essential functions of the feeder driver position.

UPS argues that we should not consider the feeder driver position because it was not available when Faidley went through the accommodation process. In accord with guidance from the Equal Employment Opportunity Commission, 29 C.F.R. Pt. 1630 app. § 1630.2(o), other circuits have considered as available “positions that the employer reasonably anticipates will become vacant in the fairly immediate future.” Smith v. Midland Brake, Inc., 180 F.3d 1154, 1175 (10th Cir. 1999) (en banc); see also Dark v. Curry Cty., 451 F.3d 1078, 1089-90 (9th Cir. 2006). We also adopt the agency’s guidance to consider such positions. In this case, Faidley has presented evidence that UPS expected that feeder driver positions would become open in the near future. We therefore conclude that Faidley has provided evidence to show that he satisfied the second element of his 2012 claim for disability discrimination.

An employee satisfies the third element of a disability discrimination claim if he shows that he suffered an adverse employment action, which “is defined as a tangible change in working conditions that produces a material employment disadvantage, including but not limited to, termination, cuts in pay or benefits, and changes that affect an employee’s future career prospects, as well as circumstances amounting to a constructive discharge.” Jackman v. Fifth Judicial Dist. Dep’t of Corr. Servs., 728 F.3d 800, 804 (8th Cir. 2013). We conclude that Faidley has established a genuine issue of material fact as to this element. Faidley has alleged and provided evidence that UPS rejected his bids for full time positions and offered him only a part time position that would have eliminated his seniority and reduced his benefits and pension. The company effectively forced him to reduce his hours significantly and he thus suffered an adverse employment action. He also suffered such an action by the company’s material reduction of his benefits. See id. Because Faidley has provided evidence to support every element of his 2012 disability discrimination claim, we conclude that the district court erred in granting summary judgment to UPS on that claim.

B.

We next address Faidley’s 2013 discrimination claim. We agree with the district court that this claim fails as a matter of law because Faidley has not offered sufficient evidence that he was qualified to perform the essential job functions of any available job. The only available job he claims he could have performed was a combination loader and pre loader position on a reduced schedule for several weeks. The record shows, however, that Faidley’s restrictions prohibited him from performing the role of loader. Even on a reduced schedule, he would have been unable to perform half of the combination loader and pre loader job. UPS was not required to reallocate the essential functions of this combined position. See Minnihan v. Mediacom Commc’ns Corp., 779 F.3d 803, 813 (8th Cir. 2015). Because Faidley has not provided evidence that he could have performed the essential job functions of any available job, he has not satisfied the second element of his 2013 discrimination claim.

Faidley also argues that UPS failed to engage him in the interactive accommodation process required by the ADA. Although “[t]here is no per se liability under the ADA if an employer fails to engage in the interactive process,” an employer’s failure to engage in the interactive process at the summary judgment stage “is prima facie evidence that the employer may be acting in bad faith.” Minnihan, 779 F.3d at 813. To show that an employer failed to participate in the interactive process, an employee must show:

(1) the employer knew about the employee’s disability; (2) the employee requested accommodation or assistance for his or her disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodation; and (4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.

Cravens v. Blue Cross & Blue Shield of Kan. City, 214 F.3d 1011, 1021 (8th Cir. 2000). The employee is not necessarily entitled to the accommodation of his choice. Minnihan, 779 F.3d at 813.

Faidley has not presented evidence to show that UPS failed to make a good faith effort to help him in seeking an accommodation. He acknowledges that UPS met with him and identified positions that he and his doctor thought he could perform. Two positions which fit the restrictions were not available. UPS told Faidley that it would inform him if these positions became available, and there is no evidence that they became available before he retired. When Faidley suggested other positions he thought he could perform, UPS promptly responded that the essential functions of those positions conflicted with his restrictions. This record shows that UPS made a good faith effort to assist Faidley in seeking an accommodation. Since Faidley has failed to present a genuine issue of material fact on his 2013 discrimination claim, summary judgment is appropriate.

C.

Faidley finally claimed before the district court that in 2013 UPS did not accommodate him in retaliation for his 2012 discrimination complaint. He did not meaningfully address this claim in his opening brief, however, and therefore he has waived it. See Ahlberg v. Chrysler Corp., 481 F.3d 630, 634 (8th Cir. 2007).

III.

For these reasons we affirm with respect to the retaliation and the 2013 discrimination claims, reverse with respect to the 2012 discrimination claim, and remand for further proceedings consistent with this opinion.

KELLY, Circuit Judge,

concurring in part and dissenting in part.

Like the district court and the parties did, I would treat this case as involving a single disability discrimination claim-— based on events spanning 2012 and 2013— rather than as two discrete disability discrimination claims — one based on events occurring in 2012, and one based on events occurring in 2013. Therefore, because Faidley produced evidence that he was qualified for the feeder driver position, I would reverse and remand the entire matter of the alleged disability discrimination to the district court. I otherwise concur in all other aspects of the court’s opinion. I appreciate the separate partial dissent’s concern that employers should not be punished for exceeding the requirements of the ADA, but I think Blood’s belief that Faidley could perform the job functions of a feeder driver is sufficient evidence that he was qualified for that position to survive summary judgment.

MONTGOMERY, District Judge,

concurring in part and dissenting in part.

I concur that Faidley’s 2013 discrimination claim fails as a matter of law, but I respectfully disagree that Faidley has raised a genuine issue of material fact on the “qualified” element of his 2012 disability discrimination claim.

The majority concludes that there is a fact question as to whether Faidley was able to perform the essential job functions of the feeder driver position. To reach its conclusion, the majority cites the 2012 accommodation worksheet where Human Resources Manager Vince Blood noted that Faidley “preliminarily appeared] capable of performing the essential job functions” of that position. However, it is undisputed that an essential function of the feeder driver position was the ability to work 9.5 hours per day. It is also undisputed that at the time the checklist was completed in July 2012, Faidley’s physician had permanently restricted him from working over eight hours per day. This was solely a time-based restriction; Faidley was not medically restricted by his physician from performing strenuous activities. Thus, the essential functions of the feeder driver position exceeded Faidley’s medical limitations. Based on this undisputed evidence, Faidley was not qualified as a matter of law to perform the essential functions of the feeder driver position for the same reason that he was not qualified as a matter of law to perform the essential functions of the delivery driver position: “That job required the ability to work more than eight hours per day, and the record is clear that Faidley was limited to working not more than eight hours per day.” Ante, at 450. Vince Blood’s notation on the accommodation worksheet that Faidley “preliminarily appeared] capable of performing the essential job functions” does not create a fact question on this issue.

In completing the accommodation worksheet, Blood was exploring positions that exceeded Faidley’s express medical restriction. This was more than required by the ADA because “[t]he ADA does not require an employer to permit an employee to perform a job function that the employee’s physician has forbidden.” Alexander v. Northland Inn, 321 F.3d 723, 727 (8th Cir. 2003). Allowing Faidley’s claim to proceed based upon Blood’s willingness to consider positions that were beyond Faid-ley’s physician’s restriction effectively punishes Blood for attempting to do more for Faidley than demanded by the ADA. Other circuits have cautioned against such a result. See Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1023 (7th Cir. 1997) (“Employers should not be discouraged from doing more than the ADA requires.”); Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1257 n.3 (11th Cir. 2001) (“Good deeds ought not be punished, and an employer who goes beyond the demands of the law to help a disabled employee incurs no legal obligation to continue doing so.”).

For these reasons, the district court was correct to conclude as a matter of law that Faidley was unable to perform the essential functions of the feeder driver position. Accordingly, I would affirm the judgment of the district court.

      . The district court determined that Faidley did riot allege UPS took an adverse employment action against him by forcing him into part time work. Faidley did allege, however, that UPS’ failure to accommodate his disability affected the "terms and conditions of his employment.” He attached to his complaint the discrimination claim he had filed with the Iowa Civil Rights Commission, which specifically stated that UPS had offered him only a part time position, and that accepting that position would have eliminated his seniority and bidding rights and reduced his benefits and pension. These allegations are sufficient to encompass Faidley’s theory that UPS took an adverse employment action against him by not allowing him to work full time.


source: Caselaw Access Project

author: RILEY, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Wesley B. WYATT, Defendant-Appellant.
    No. 16-1729
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 18, 2016
    Filed: April 4, 2017

      Daniel P. Goldberg, Research and Writing Specialist, Office of the Fed. Public Defender, Kansas City, MO (Laine Car-darella, Fed. Public Defender, Stephen C. Moss, Asst. Fed. Public Defender, on the brief), for appellant.
    Justin G. Davids, Asst. U.S. Atty., Kansas City, MO (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
    Before RILEY, Chief Judge, WOLLMAN and KELLY, 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.

A jury found Wesley Wyatt guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Wyatt to a prison term of 262 months. On appeal, Wyatt contends the indictment charged him with receipt (not possession) of a firearm, and thus the district court should have granted his motion for judgment of acquittal because the government failed to carry its burden of proving where and when Wyatt received the gun. Wyatt also argues the district court erred by applying the Armed Career Criminal Act (ACCA) enhancement under 18 U.S.C. § 924(e), because a jury never found beyond a reasonable doubt his prior convictions occurred on different occasions. We find no merit in either argument, and we affirm Wyatt’s conviction and sentence.

1. BACKGROUND

On September 18, 2013, the Kansas City Police Department (Missouri) received a call from Lisa Hayes about a domestic disturbance at her apartment. Officers arrived at the scene within a few minutes to find Hayes — Wyatt’s girlfriend and roommate — waiting for them outside. Hayes told the officers she had just been in an argument with Wyatt that “escalated to a point where he pulled a gun, pointed it at her,” and said something to the effect of “ ‘If you don’t leave, I will kill you.’ ” The officers then canvassed the surrounding area for roughly 20 minutes, but had no luck locating Wyatt and returned to the apartment. They were discussing the matter outside when Hayes, who had returned inside during the search, yelled from her porch that Wyatt was sitting on the couch inside the apartment. The officers arrested Wyatt “without incident,” though they could not find the gun before taking Wyatt to headquarters for booking.

Two hours after the first report, dispatch received another call from Hayes. Hayes told the police Wyatt’s sister had contacted her, saying “the thing” was in the mailbox and that she needed to “take care of it” for Wyatt. Sure enough, when Hayes found Wyatt’s keys and looked in the mailbox she found a loaded .38-caliber Derringer pistol. Hayes had never seen the gun before that night, but Wyatt had told her within the last week that he had purchased a gun and hidden it outside the apartment. A detective subsequently discovered two calls Wyatt had made from the detention center after he was detained that corroborated Hayes’s story. In the first recorded call, Wyatt indicated there .was “[sjomething serious in that mailbox” that needed to be retrieved. In the second call, Wyatt told his sister: “I got a gun in the mailbox. Get it out of there ’cause [Hayes] just called the police on me.”

On September 20, Wyatt was charged with being a felon who “did knowingly possess, in and affecting interstate commerce, a firearm.” See 18 U.S.C. §§ 922(g)(1), 924(a)(2). A grand jury indicted Wyatt on that same charge less than one month later. The indictment read:

On or about September 18, 2013, in the Western District of Missouri, the defendant, WESLEY WYATT, having been convicted of crimes punishable by imprisonment for a term exceeding one year, did knowingly possess, a firearm, ... which had been transported in interstate commerce.

Wyatt’s case proceeded to trial; and the government put forth evidence establishing the above narrative before resting its case. Wyatt stipulated to two additional points. First, the recovered gun was operable and “manufactured by Davis Industries in the State of California.” Second, he “had sustained at least one conviction for which he could receive a term of imprisonment greater than one year, otherwise known as a felony conviction.” Wyatt moved for a judgment of acquittal, see Fed. R. Crim. P. 29(a), arguing “the indictment [did] not charge Mr. Wyatt with possessing any firearm ‘in or affecting commerce,’ but only with possessing a firearm that ‘had been transported in interstate comr merce.’ ” (Citing 18 U.S.C. § 922(g); United States v. Singletary, 268 F.3d 196, 199 (3d Cir. 2001)). Thus, “[g]iven the interstate nexus alleged in the indictment,” Wyatt claimed, “the government was obligated to prove receipt, rather than mere possession, of the firearm.” Unconvinced by Wyatt’s interpretation, the district court denied the motion. The jury found Wyatt guilty.

The United States Probation Office prepared a Presentence Investigation Report (PSR), and determined Wyatt had a total offense level of 34, criminal history category of VI, and advisory sentencing range of 262 to 327 months. See generally United States Sentencing Guidelines (Guidelines). The PSR also found Wyatt was subject to the ACCA enhancement, which replaced Wyatt’s ten-year maximum sentence with a fifteen-year minimum sentence. See 18 U.S.C. § 924(a)(2), (e). Wyatt objected on the basis that some of the predicate convictions stemmed from a single trial, and no jury ever found beyond a reasonable doubt that the offenses were “committed on occasions different from one another” as the ACCA requires. Id. § 924(e). At the sentencing hearing, Wyatt’s counsel candidly acknowledged to the district court that “there is Eighth Circuit case law against [Wyatt] on this issue,” and explained he was preserving his objection “for the purpose of appellate review in the event at some point the law does change in our favor.” The district court overruled the objection, and then sentenced Wyatt to a bottom-of-the-Guidelines range of 262 months imprisonment. Wyatt appeals. See 28 U.S.C. § 1291 (appellate jurisdiction).

II. DISCUSSION

A. Motion for Judgment of Acquittal

Wyatt first argues the district court should have granted his motion for judgment of acquittal, a decision we review de novo. See United States v. Griffith, 786 F.3d 1098, 1102 (8th Cir. 2015). Normally, we assess such an argument by asking “whether the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). Here the parties do not dispute the evidence in the traditional, qualitative-and-quantitative sense. Instead, they quarrel over whether the evidence must be weighed against the elements for possession of a firearm or receipt of a firearm. Our rather straightforward task is to determine whether the indictment sufficiently charged Wyatt with the crime for which he was convicted: unlawful possession of a firearm. See 18 U.S.C. § 922(g)(1); United States v. Hernandez, 299 F.3d 984, 992 (8th Cir. 2002) (“ ‘An indictment will ordinarily be held sufficient unless it is so defective that it cannot be said, by any reasonable construction, to charge the offense for which the defendant was convicted.’ ” (quoting United States v. Fleming, 8 F.3d 1264, 1265 (8th Cir. 1993))). The criteria we use to assess the adequacy and clarity of an indictment have been repeatedly expressed in our cases:

“An indictment is legally sufficient on its face if it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution.”

Id. (quoting Fleming, 8 F.3d at 1265).

We are satisfied Wyatt’s indictment sufficiently charged him with unlawful possession of a firearm. To begin, we find persuasive the plain language of the indictment, in which we find the word “possess” and discover no mention of “receipt.” To ignore this and somehow read “receipt” into the indictment despite its conspicuous absence would be unreasonable.

Furthermore, we note the indictment set forth the necessary elements for unlawful possession when it charged that Wyatt (1) had “been convicted of crimes punishable by imprisonment for a term exceeding one year,” and (2) “did knowingly possess[ ] a firearm” that (3) “had been transported in interstate commerce.” See 18 U.S.C. § 922(g)(1); United States v. Johnson, 745 F.3d 866, 869 (8th Cir. 2014). Wyatt takes issue with the fact the indictment failed to allege the statutory language that he possessed a firearm “in or affecting commerce.” 18 U.S.C. § 922(g). The argument goes, he must have been charged with receipt because the indictment quoted the interstate language associated with that crime instead — “transported in interstate ... commerce.” Id. We have made clear “ ‘a court may not insist that a particular word or phrase appear in the indictment when the element is alleged “in a form” which substantially states the element.’ ” United States v. Villarreal, 707 F.3d 942, 957 (8th Cir. 2013) (quoting United States v. Mallen, 843 F.2d 1096, 1102 (8th Cir. 1988)). We agree with the government that “by alleging that the firearm was transported in interstate commerce, the indictment stated the particular method by which the firearm had been in, or affected, commerce.” Thus the indictment “substantially states the element.” Id.; see, e.g., Johnson, 745 F.3d at 869 (“To convict an individual of being a felon in possession of a firearm, the government must prove ... the firearm was transported in interstate commerce.”); United States v. Carter, 270 F.3d 731, 733-35 (8th Cir. 2001); United States v. Hubbard, 61 F.3d 1261, 1269 (7th Cir. 1995) (rejecting a virtually identical argument); e£ United States v. Mosby, 60 F.3d 454, 456 (8th Cir. 1995) (“The phrase ‘in or affecting commerce’ is a term of art that indicates a congressional intent to invoke the full extent of its commerce power.”).

Lastly, the record convinces us the indictment fairly informed Wyatt of the felon-in-possession charge he was facing. See Hernandez, 299 F.3d at 992. In addition to the plain language of the indictment itself, the criminal complaint was for unlawful possession. In multiple pretrial motions Wyatt acknowledged he “was indicted for unlawful possession of a firearm.” Wyatt never requested a bill of particulars to clarify any perceived lack of clarity. See Fed. R. Crim. P. 7(f). Nor did Wyatt object to the government’s proposed jury instructions, which framed the charge as one of unlawful possession. Wyatt’s own proposed voir dire questions included a statement that “[t]he charges against [Wyatt] include an allegation that he is prohibited from possessing a firearm.” Put simply, Wyatt was indicted for unlawful possession of a firearm, the jury found him guilty of that charge, and there is sufficient evidence to support that finding. The district court was correct to deny Wyatt’s motion for judgment of acquittal.

B. Application of the ACCA Enhancement

Wyatt alternatively argues the district court erred by applying the ACCA enhancement, another issue we review de novo. See United States v. Ramsey, 498 Fed.Appx. 653, 654 (8th Cir. 2013) (per curiam). The ACCA establishes a fifteen-year minimum prison sentence for any person who violates § 922(g) and “has three previous convictions by any court ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). Here, the PSR and district court found Wyatt to be an armed career criminal under § 924(e) given: a 1984 conviction for robbery, two 2001 convictions for drug-related offenses that were charged separately but sentenced together, and a 2012 conviction for second-degree attempted robbery.

No jury ever found these convictions were “committed on occasions different from one another,” and Wyatt contends it was improper for the district court to make this determination given that it converts his statutory maximum sentence into a higher mandatory minimum sentence. See Alleyne v. United States, 570 U.S. -, -, 133 S.Ct. 2151, 2160, 186 L.Ed.2d 314 (2013) (noting “a fact increasing either end of the [sentencing] range produces a new penalty and constitutes an ingredient of the offense,” and “a jury [must] find those facts beyond a reasonable doubt”); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (emphasis added)). But see Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (deeming prior convictions a sentencing factor for the court to consider rather than a criminal element the jury must find). We have faced and unequivocally rejected Wyatt’s exact argument before. See, e.g., United States v. Harris, 794 F.3d 885, 887 (8th Cir. 2015) (“[Recidivism is not an element that must be admitted or proved to a jury.... Whether prior offenses were committed on different occasions is among the recidivism-related facts covered by the rule of Almendarez-Torres.”); Ramsey, 498 Fed.Appx. at 654 (“We have previously held the question of whether prior felonies were committed on separate occasions may be resolved by a judge.”). As Wyatt seems to recognize, his argument is really “that Almendarez-Tor-res was wrongly decided” and “8th Circuit case precedent following Almendarez-Torres should be overruled.” This we cannot and will not do. See Owsley v. Luebbers, 281 F.3d 687, 690 (8th Cir. 2002) (“It is a cardinal rule in our circuit that one panel is bound by the decision of a prior panel.”). The district court was correct to follow our precedent and apply the ACCA enhancement.

III. CONCLUSION

We affirm Wyatt’s conviction and sentence.

      . The Honorable Gary A. Fenner, United States District Judge for the Western District of Missouri.

      . The government does not suggest it submitted sufficient proof of receipt.

      . It appears Wyatt has at least four convictions that, taken individually, constitute "a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). Though framed more broadly and vaguely on appeal, Wyatt's argument in the district court was really that the 2001 drug convictions were never found by a jury to be "committed on occasions different from one another,” as he claims they needed to be. Id Even if this argument had merit and the convictions were counted as one, Wyatt would still have three ACCA-quali-fying convictions: one in 1984, one in 2001, and one in 2012. See Fed. R. Crim. P. 52(a).


author: MELLOY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Michael COTTRELL, Defendant-Appellant
    No. 16-1775
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 9, 2017
    Filed: April 4, 2017

      Mark Tremmel, Assistant U.S. Attorney, U.S. Attorney’s Office, Northern District of Iowa, Cedar Rapids, IA, for Plaintiff-Appellee.
    Michael Cottrell, Pro Se.
    Heather Quick, Assistant Federal Public Defender, Federal Public Defender’s Office, Northern District of Iowa, Cedar Rapids, IA, for Defendant-Appellant.
    Before COLLOTON, MURPHY, and MELLOY, Circuit Judges.
   MELLOY, Circuit Judge.

Michael Cottrell pled guilty to one count of receipt of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1), and one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(b) and 2252A(b)(2). The district court sentenced Cottrell to 360 months’ imprisonment, at the bottom of his advisory range under the United States Sentencing Guidelines. Cottrell appeals, arguing the district court procedurally erred by considering unproven facts in imposing the sentence and abused its discretion by imposing a substantively unreasonable sentence. We affirm.

I.

After law enforcement learned that Cottrell was using peer-to-peer file sharing software to download child pornography, officers executed a search warrant at Cott-rell’s residence. During the search, officers found an HP laptop and notebooks belonging to Cottrell. The notebooks contained handwritten stories by Cottrell depicting incest and minors engaged in sexual acts. A forensic examiner later found 422 videos and 1,687 images of possible child pornography on the laptop, including images of prepubescent children.

During execution of the search warrant, officers interviewed Cottrell. Cottrell admitted he downloaded child pornography and stated he normally did not share his child pornography files. Cottrell also told officers that he was charged with two counts of first degree sodomy as a juvenile in Kentucky, he pled guilty to two counts of misdemeanor third degree sexual misconduct, and he went to counseling. In a second interview, Cottrell stated that he “agreed to misdemeanors” and was put in counseling following the Kentucky charges. Regarding the handwritten stories found during the search, Cottrell explained that in counseling he was taught to write stories about his feelings.

Cottrell was indicted for receipt of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1), and possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(b) and 2252A(b)(2). He pled guilty to both offenses. Before sentencing, the Government indicated that based upon the Kentucky incident it would attempt to prove a prior conviction for sexual abuse or abusive sexual conduct involving a minor to increase Cottrell’s sentence. The initial Presentence Investigation Report (“PSR”) calculated a guideline range of 360-720 months (720 months being the statutory maximum), based on an offense level of 42 and a criminal history category of I. Treating the Kentucky incident as a conviction, the guideline range included the enhancement for a pri- or conviction pursuant to 18 U.S.C. §§ 2252(b)(1) and 2252A(b)(2). The guideline range also included a five-level enhancement for engaging in a pattern of activity involving sexual abuse or exploitation of a minor pursuant to United States Sentencing Guideline § 2G2.2(b)(5).

Cottrell made a number of objections to the initial PSR. Specifically, Cottrell argued there was insufficient evidence to support an enhancement for a prior conviction. The Government subsequently declined to pursue the enhancement because evidence regarding the Kentucky incident was limited. The only records the Government produced were handwritten juvenile court docket cards that were largely illegible as to what the actual charges were and the final disposition of those charges.

At sentencing, the district court calculated Cottrell’s guideline range as 360-480 months. The Government requested a guideline sentence and Cottrell moved for a downward variance. In rejecting that motion, the court stated:

There are several aggravating factors that could take the Court to the very top of the advisory guideline range, including the fact that he has a prior conviction for hands-on abuse of minor children that were under his care as a babysitter; that he had over 33,000 images, and the guidelines score a level 5 for 600 or more images; and the fact that he violated the terms of his pretrial release by continuing to view and seek out erotica on his cellphone.

Discussing Cottrell’s history and characteristics, the court noted “his juvenile commitment for sex abuse second degree out of Kentucky.” Cottrell did not object to these comments. The court sentenced Cottrell to 360 months’ imprisonment, consisting of 240 months for receipt of child pornography and 240 months for possession of child pornography, to be served concurrently, except that 120 months of the sentence for possession is to run consecutively to the 240 months imposed for receipt.

II.

Cottrell raises two arguments on appeal. First, Cottrell argues the district court procedurally erred by relying on Cottrell’s unproven conviction for second degree sexual abuse as a juvenile. Second, Cottrell argues a 30-year sentence for a first offense is substantively unreasonable.

A.

Cottrell contends his 360-month sentence was the result of procedural error. To be clear, the district court did not impose a sentence enhancement based on the unproven conviction. Rather, the court cited the unproven conviction in denying Cottrell’s motion for a downward variance. “Procedural error includes failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (emphasis added) (quotations and citations omitted).

Because Cottrell failed to object to the district court’s alleged procedural error, we review for plain error. United States v. Grimes, 702 F.3d 460, 470 (8th Cir. 2012). “To establish plain error, [a defendant] must prove (1) there was error, (2) the error was plain, and (3) the error affected his substantial rights.” Id. (alteration in original) (quoting United States v. Miller, 557 F.3d 910, 916 (8th Cir. 2009)). “[A]n error is prejudicial in the sentencing context ‘only if there is a reasonable probability that the defendant would have received a lighter sentence but for the error.’ ” Id. (quoting Miller, 557 F.3d at 916).

Cottrell focuses on two statements from the district court during the sentencing hearing: (1) “There are several aggravating factors that could take the Court to the very top of the advisory guideline range, including the fact that he has a prior conviction for hands-on abuse of minor children that were under his care as a baby-sitter;” and (2) “We talked about ... his juvenile commitment for sex abuse second degree out of Kentucky.” Cottrell argues that these statements lack factual support because the record does not establish the disposition of the Kentucky charges.

It is undisputed that Cottrell was involved in an incident involving sex abuse in Kentucky as a juvenile. However, as the Government conceded, the disposition of the juvenile case is unclear and the Government thus declined to pursue the statutory enhancement based on a prior conviction. Further, though the PSR contained information regarding the Kentucky incident in a number of different paragraphs, Cottrell objected to those paragraphs.

The district court erred in relying on unproven, objected-to facts. “A PSR is not evidence and not a legally sufficient basis for findings on contested issues of material fact. If the PSR’s factual allegations are objected to, the government may prove relied-on and contested facts. Then, the court must either make findings by a preponderance of the evidence or disregard those facts.” United States v. Webster, 788 F.3d 891, 892 (8th Cir. 2015) (citations omitted). In this case, the Government did not prove Cottrell’s prior conviction by a preponderance of the evidence. Thus, the error is plain because “the district court must not consider contested facts without proof by a preponderance of the evidence.” Id.

The prior conviction, however, was only one basis for denying Cottrell’s requested downward variance. “To demonstrate an effect on substantial rights, [Cottrell] must show a reasonable probability that but for the error, he would have received a more favorable sentence.” Id. Cottrell has failed to establish a reasonable probability that he would have received a more favorable sentence if the district court had not relied on his unproven prior conviction. First, the Kentucky charges were only one factor cited by the court in denying a downward variance. The court also denied the variance due to the number of images Cottrell possessed “and the fact that he violated the terms of his pretrial release by continuing to view and seek out erotica on his cellphone.” Second, even considering these facts, the court sentenced Cottrell at the bottom of his guideline range. Finally, the conduct underlying the Kentucky charges, regardless of the disposition of those charges, is undisputed. Cottrell readily admitted that he sexually abused minor children as a juvenile in Kentucky and there is evidence in the record as to this conduct. As a result, Cottrell has not shown a reasonable probability “that but for the error, he would have received a more favorable sentence.” Id.

B.

Cottrell also argues his sentence is substantively unreasonable because the district court improperly considered the unproven conviction. We review the substantive reasonableness of a sentence for abuse of discretion. Feemster, 572 F.3d at 461. On appeal, “[a] sentence falling within the applicable guideline range may be presumed to be substantively reasonable.” United States v. Linderman, 587 F.3d 896, 901 (8th Cir. 2009). Cottrell argues that, in addition to the improper reliance on the unproven conviction, his sentence is unreasonable because he accepted responsibility, he has no criminal history, and he attempted to prevent further distribution of child pornography. However, as Cottrell’s sentence came within the guideline range and is amply supported by the record, Cott-rell’s arguments are insufficient to rebut the presumptive reasonableness of his sentence.

III.

Accordingly, we affirm the judgment of the district court.

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

      . The PSR stated that Cottrell possessed a total of 33,337 child pornography images. Cottrell did not object.


author: BEAM, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Dwight Deron COOKE, Defendant-Appellant United States of America, Plaintiff-Appellee v. Maria Elena Cantu, also known as Maria Cantu, Defendant-Appellant
    No. 16-1381, No. 16-1738
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 14, 2016
    Filed: April 5, 2017

      Counsel who represented the appellant, Dwight Cooke was Eric D. Tindal of Williamsburg, IA.
    Counsel who represented the appellant, Maria Cantu was L. Aron Pena of Edin-burg, TX.
    Counsel who represented the appellee was William Reiser Ripley, AUSA, of Davenport, IA.
    Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
   BEAM, Circuit Judge.

Dwight Cooke and Maria Elena Cantu were convicted of conspiring to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. Then-convictions arose out of the same investigation and their cases have been consolidated on appeal. They each challenge as-, pects of their pretrial detention, conviction, and sentencing, and we now affirm the district court.

I. BACKGROUND

State and local law enforcement officers investigated a drug-trafficking ring in Davenport, Iowa, in November and December of 2014. The investigation involved several controlled buys and revealed a chain of distribution with Cantu at the top, supplying methamphetamine and other narcotics, and Cooke at the bottom, selling to users. State search warrants were issued in December 2014, authorizing searches of the residences of the ring members. On January 16, 2015, a federal complaint was filed before a federal magistrate judge charging Cooke, .Cantu, and two others with conspiracy to distribute methamphetamine. The magistrate judge issued federal arrest warrants for the conspirators in that case, case 3:15-mj-6. Because Cooke’s and Cantu’s claims are distinct and pertain to their respective circumstances, we outline the facts of their cases separately.

A. Cooke

On January 23, 2015, Cooke called the Davenport Police Department and stated he would turn himself in at'7:30 p.m. that evening. He then called his girlfriend and requested that he see his son because he was going to jail later that day. When he met his girlfriend, his son was not with her. The couple argued, and Cooke then assaulted his girlfriend with a scalpel, attempting to cut her throat. He missed, instead cutting her from the corner of her mouth to her cheek. He then stole her vehicle and fled, and failing to turn himself in that evening, remained at large. On February 4, 2015, the Iowa District Court for Scott County issued an arrest warrant for Cooke for a charge of “Willful Injury — • Causing Bodily Injury” for the assault on his girlfriend. On February 18, 2015, a state bench warrant was issued for Cooke’s having violated a protective order prohibiting him from contacting his girlfriend. That same day, Cooke was arrested by Davenport police officers and U.S. Marshals. The arresting state officer read all three warrants — the state arrest and bench warrants and the federal 3:15-mj-6 warrant — to Cooke. Also on February 18, a federal grand jury in the Southern District of Iowa indicted Cooke, Cantu, and the other conspirators on federal conspiracy charges. The indictment was filed in case 3:15-cr-15, and a federal arrest warrant for Cooke in that case was issued that day, but not executed. Cooke was held in Scott County Jail, and the U.S. Marshals Service issued a writ of detainer against him. On April 24, 2015, Cooke was transferred to federal custody, a U.S. Marshal executed the 3:15-cr-15 warrant, and Cooke appeared before a federal magistrate judge for the Southern District of Iowa. Cooke filed a motion to dismiss, arguing that the amount of time between his February 18 arrest and his April 24 appearance violated both Federal Rule of Criminal Procedure 5(a)(1)(A) and the Sixth Amendment. The district court dismissed the motion.

Cooke’s trial date was initially set for June 8, 2015, but the district court continued trial to August 17, noting, “There is voluminous discovery and a failure to grant continuance will deny reasonable time necessary for adequate preparation for trial even with the exercise of due diligence by the parties.” Trial was continued again, over Cooke’s objection, to August 24 due to the district court’s trial schedule. On August 13, the district court granted another sixty-day continuance in order for Cooke’s new counsel to prepare for trial, now set for October 26. On October 16, Cooke pléd guilty to the federal conspiracy charge.

At the sentencing hearing, there was discussion about whether Cooke’s assault on his girlfriend was relevant conduct. See U.S. Sentencing Guidelines Manual § 1B1.3 (hereinafter U.S.S.G. or Guidelines). At this time Cooke had been convicted in state court on charges arising from the assault on his girlfriend, but he had not yet been sentenced. Although the district court believed the assault was relevant, it granted the parties’ request that it be treated as nonrelevant. As a consequence, Cooke was safety-valve eligible, but the assault added a point to his criminal history and his federal sentence would be eligible to run consecutively with the anticipated sentence on the state charges. U.S.S.G. §§ 4Al.l(c), 4A1.2(a)(4), 5C1.2, 5G1.3(c). After establishing a criminal-history category of I and a Guidelines advisory range of 46 to 57 months, the district court departed upward to an advisory range of 57 to 71 months on the basis of an underrepresented criminal history. Id. § 4A1.3. The district court was concerned with two convictions too old to be counted in calculating Cooke’s criminal-history category under Guidelines § 4A1.2(e)(l). The first was a conviction for assaulting his girlfriend and the mother of his children. Cooke used a twisted T-shirt to repeatedly choke her and punched her in the face. The presentence investigation report (PSIR) also noted that Cooke subsequently violated a no-contact order by visiting the woman’s apartment. The second was a conviction for burglary, in which Cooke kicked in another woman’s door, threatened to kill her, and fled from police officers. In addition, the district court was concerned with Cooke’s conviction for the January 2015 assault described above. That conviction garnered only one point because Cooke had not yet been sentenced, id. § 4A1.2(a)(4), but the district court considered it a “horrific” incident and “by far the most serious offense.” This, combined with the fact that officers had to tase Cooke during his February 18, 2015, arrest, led the district court to conclude that a criminal-history category of III was more appropriate.

The district court then varied upward to 96 months on the basis of the 2015 assault. Although it had accepted the parties’ suggestion to treat the 2015 assault as nonre-levant conduct for purposes of determining the applicable Guidelines range, it noted that it was “firmly convinced” that the assault was, in fact, relevant. The district court stated that “if it were relevant conduct, we would have had a very different calculation.” It considered the assault for purposes of its analysis under 18 U.S.C. § 3553(a), stating the treatment of the assault under the Guidelines was “essentially [a] sentencing concession[] made by the government that I am allowed to consider in deciding a fair and appropriate sentence.” It stated that although the State would be permitted to order a sentence on the assault charges to run consecutive to the federal sentence, the district court’s experience with Iowa state and federal prosecutions led it to believe that Cooke would likely be paroled quickly to serve his federal sentence. It also noted the high quantity and purity of-the drugs involved. The district court therefore varied upward to what it would have sentenced Cooke to if it had considered the 2015 assault relevant conduct, and it ordered that sentence to be-served concurrently with the anticipated state sentence. Cooke appeals the district court’s denial of his motion to dismiss and sentencing.

B. Cantu

Cantu was arrested on January 17, 2015, and made her initial appearance on the 20th. She was indicted on February 18, 2015, and trial was set for May 4. On Cantu’s motion, the trial was continued to June 8, 2015. In its order the district court specified that “[t]he time of the delay shall constitute excludable time under the Speedy Trial Act.” On May 14 and on defendants’ motion, trial was again continued to August 17, the district court again specifying that the time of delay was ex-cludable under the Speedy Trial Act. On July 1 the district court continued trial to August 24 due to its conflicting trial schedules. On August 13 and on motion by Cooke, unresisted by Cantu, the trial was continued again to October 26, and again the district court noted the delay was ex-cludable for Speedy Trial Act purposes. Cantu’s counsel moved to withdraw and so trial was continued to November 30, 2015, and again the district court specified the delay was excludable under the Speedy Trial Act. Cantu then notified the court she would be waiving her right to a jury trial, and a bench trial was scheduled for December 1, 2015. The record does not reflect that Cantu at any point asserted her rights under the Speedy Trial Act before the district court.

At trial, the government presented evidence of three controlled purchases of methamphetamine involving Cantu’s niece, Rachel Gonzalez. Before two of these purchases, investigators observed Gonzalez park near Cantu’s vehicle at a motel where Cantu and her husband were staying, briefly enter the motel, and emerge supplied with drugs she sold immediately afterward. Investigators also observed Gonzalez meet with someone resembling Cantu immediately after Gonzalez sold methamphetamine to Cooke. The government presented evidence from their search of Cantu’s motel room, in which they found Cantu’s purse on a night stand with approximately $11,000 cash in it. Of that amount, $2,500 was from marked bills used in controlled purchases of cocaine (accounting for $300) and methamphetamine (accounting for $2,200). In the drawer of the night stand, officers found approximately 220 grams of cocaine divided into one-ounce packages. Officers also found a digital scale that tested positive for cocaine residue. In addition, the government presented text-message communications between members of the conspiracy, which officers obtained when they seized and downloaded the contents of Cantu’s and Gonzalez’s cell phones. In an interview with investigators, Cantu claimed the $11,000 was from her husband’s tattooing and tree-service businesses and that she did not know anything about the cocaine found in the motel room. On this evidence, the district court found Cantu guilty. Cantu challenges the admission of certain evidence, the efficacy of her counsel, the sufficiency of the evidence, and she brings a Speedy Trial Act claim.

II. DISCUSSION

A. Cooke

Cooke appeals the district court’s denial of his motion to dismiss and its upward departure and variance at sentencing.

1. Motion to Dismiss

We review the district court’s denial of a motion to dismiss de novo. United States v. Tankersley, 374 F.3d 721, 722 (8th Cir. 2004). Cooke argued in his motion that the sixty-five day delay between his February 18 arrest and April 24 initial appearance violated Federal Rule of Criminal Procedure 5(a)(1)(A) and the Sixth Amendment.

a. Federal Rule of Criminal Procedure 5

Rule 5(a)(1)(A) provides that “[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge.” “Rule 5(a) applies only to persons arrested and held under federal law.” United States v. Elliott, 435 F.2d 1013, 1015 (8th Cir. 1970). Although Rule 5 does not apply where the defendant “has been arrested by local authorities and is in their sole custody,” it may apply in the absence of a federal arrest “when there is evidence indicating that the arrest and detention by the state official were at the request of federal authorities or for the purpose of assisting them.” United States v. Jarrett, 423 F.2d 966, 971 (8th Cir. 1970) (first passage quoting Tucker v. United States, 375 F.2d 363, 370 (8th Cir. 1967)); see also United States v. Jeanetta, 533 F.3d 651, 656 (8th Cir. 2008) (noting Rule 5(a) applies to a person in local custody where “the state officers are acting at the direction of or in concert with the federal officers, or there is collaboration between the federal and state authorities” (quoting United States v. Morris, 445 F.2d 1233, 1236 (8th Cir. 1971))).

When Cooke was arrested on February 18, 2015, he was taken into state custody on state charges until he was transferred by writ to federal custody on April 24. The only arguable bases on which his arrest could trigger Rule 5(a), then, are (1) if the execution of the 3:15-mj-6 warrant at the time of Cooke’s arrest rendered it a federal arrest; or (2) if the state and local officers were acting at the direction of or in order to assist federal authorities. Ultimately, however, we need not decide whether Rule 5(a) applies under these circumstances. The purpose of that rule is to “frustrate law-enforcing officers from detaining the arrested person for an unnecessary period of time to enable the officer to extract a confession from the arrested individual.” Jeanetta, 533 F.3d at 656 (quoting Morris, 445 F.2d at 1236). Accordingly, the appropriate remedy for a violation of Rule 5(a)(1)(A) is not dismissal of an indictment, but suppression of evidence illegally obtained as a result of the violation. See United States v. Chavez, 705 F.3d 381, 385-86 (8th Cir. 2013). Cooke points to no such evidence, arguing only that the period in state custody prejudiced him by delaying appointment of counsel, which deprived counsel of adequate time to prepare for trial. We have not been directed to any authority suggesting that this is a sort of prejudice addressed by Rule 5(a), and in any event Cooke’s trial date was continued at his request for ten weeks to allow time to prepare in light of voluminous discovery, and later his new counsel was given a sixty-day continuance for time to prepare. Cooke was not prejudiced by the period of delay and so he has not identified any available remedy for a supposed violation of Rule 5.

b. Sixth Amendment Right to Speedy Trial

Cooke next argues the time between his indictment and trial violated his Sixth Amendment right to a speedy trial. The Sixth Amendment provides defendants with a right to a speedy trial that “attaches at the time of arrest or indictment, whichever comes first, and continues until the trial commences.” United States v. Sprouts, 282 F.3d 1037, 1042 (8th Cir. 2002). If the length of this period extends far enough as to be presumptively prejudicial, we then examine the reason for the delay, whether the defendant asserted the right, and any prejudice to the defendant. Id.

Cooke argues that the delay between his February 18 arrest and his initial appearance sixty-five days later prejudiced him for the same reason stated in his Rule 5 argument — lack of adequate time to prepare. But a defendant’s constitutional right to a speedy trial concerns the length of time between the indictment or arrest and trial, not his initial appearance. Cooke’s argument as to prejudice seems to be that the time before trial was too speedy because his counsel needed more time to prepare; but the constitutional right to a speedy trial is primarily concerned with an unduly long period and is meant “to minimize the possibility of lengthy incarceration prior to trial.” United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982).

Cooke was indicted on the conspiracy charge on February 18, and he pled guilty on October 16. A magistrate judge recommended the plea be accepted that day, and the district comí accepted the report and recommendation on November 12. Thus the correct period for analysis under the Sixth Amendment is at most 267 days, a little shy of nine months. “A delay approaching a year may meet the threshold for presumptively prejudicial delay....” United States v. Titlbach, 339 F.3d 692, 699 (8th Cir. 2003). In Titlbach we held an eight-month delay was not presumptively prejudicial “[g]iven the complexity of the conspiracy and the length of trial.” Id.; see also United States v. McFarland, 116 F.3d 316, 318 (8th Cir. 1997) (holding seven-month period between indictment and trial “too brief a delay to trigger review of his Sixth Amendment speedy trial claim”), abrogated by United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). The instant case involved several coconspirator defendants, voluminous discovery, several requests from defendants for continuances, and motions for both Cooke’s and Cantu’s counsel to withdraw. Given this we do not consider the 267-day period presumptively prejudicial. Even if it were, the lion’s share of the delay was due to Cooke’s and his codefendants’ own motions for continuance, and Cooke provides no citation to the record demonstrating that he asserted his speedy trial rights. The district court granted two of those continuances specifically to allow Cooke’s counsel to deal with voluminous discovery, remedying the very prejudice he complains of. We therefore affirm the district court’s denial of Cooke’s motion to dismiss.

2. Sentencing

Cooke next challenges the reasonableness of the district court’s upward departure and upward variance at sentencing. We review sentencing decisions for an abuse of discretion. United States v. Feemster, 572 F.3d 455, 461-62 (8th Cir. 2009) (en banc). We first ask whether the district court committed any significant procedural error, which includes the failure to adequately explain deviations from the applicable Guidelines range. Id. The district court abuses its discretion when it fails to consider a relevant factor that should have received significant weight, gives significant weight to an improper or irrelevant factor, or commits a clear error of judgment in weighing the appropriate factors. Id. If the district court did not commit procedural error, we then review the substantive reasonableness of the sentence for an abuse of discretion, considering the totality of the circumstances and the extent of any deviation from the applicable Guidelines range. Id

a. Upward Departure

Cooke first objects to the district court’s departure from an advisory Guidelines range of 46 to 57 months upward to a range' of 57 to 71 months. Section 4A1.3 of the Guidelines permits a district court to rely on reliable information to conclude the defendant’s criminal-history category un-derrepresents the seriousness of her criminal history and the likelihood of recidivism. The district court considered Cooke’s pattern of violent conduct underlying his past arrests, his evasion and need to be subdued when arrested, and his pending state charges for assault and violation of a protective order. It stated, “Here I do believe that the criminal history category of I pretty dramatically underrepresents the serious nature of the defendant’s prior record.” After reciting Cooke’s past conduct and emphasizing the brutal nature of his 2015 assault on his girlfriend, the district court concluded, “That is just not a category I offender. Category I offenders don’t have criminal history or don’t have any serious criminal history. This is in my view a criminal history that is most closely resembling that of a category III offender. ...”

First, Cooke argues that his criminal history is not as violent as described by the district court. He points out that the charges and sentences were relatively un-serious, netting in total nine days in county jail. Second, Cooke argues the district court did not sufficiently explain its reasoning for regarding Cooke’s criminal history as more reflective of a category III history. Third, Cooke argues the district court erred when it said, “Category I offenders don’t have criminal history or don’t have any serious criminal history.” Cooke argues that he is a category I offender because the Guidelines exclude convictions that are too dated.

Cooke does not dispute the factual bases for the prior convictions outlined in the PSIR or otherwise argue that they are not “rehable information.” The district court was certainly within its discretion to consider those facts. See United States v. Thornberg, 326 F.3d 1023, 1026-27 (8th Cir. 2003). We do not think the district court’s arguable mischaracterization of the criminal history of category I offenders amounts to a significant procedural error; its statement tended to show no more than that it considered Cooke’s criminal history more serious than that typical of a category I offender. And although dated offenses are not counted for purposes of a criminal-history calculation, Ü.S.S.G. § 4A1.2(d), (e), the district court is allowed to consider such offenses for purposes of an upward departure under § 4A1.3(a)(2)(A). See United States v. Johnson, 648 F.3d 940, 943 (8th Cir. 2011).

We are also unpersuaded by Cooke’s challenge to the adequacy of the district court’s explanation for its upward departure from a category I to a category III criminal history. We require a district court in imposing an upward departure under Guidelines § 4A1.3(a) to proceed along the criminal history axis of the sentencing matrix, comparing the defendant’s criminal history — including the prior convictions uncounted under the Guidelines the district court believes should be applied — with the histories of offenders in each higher category. Johnson, 648 F.3d at 943. While it is true that the district court’s explanation for the upward departure does not address with much specificity why a category III criminal history is the appropriate level, we have previously upheld nonextensive explanations of upward departures so long as the district court “adequately explained [its] rationale for the sentence imposed.” Id at 944. Nor do we require the district court to mechanically provide an explanation for why each intermediate category is inapplicable. Id. at 943-44. We think the district court’s focus on the seriousness of Cooke’s criminal history and his propensity for violence that history exhibited adequately explained the district court’s rationale and “provide[d] sufficient indicia of why the intermediary categories are inappropriate.” Id. at 944 (quoting United States v. Azure, 536 F.3d 922, 932 (8th Cir. 2008)). We detect no procedural error in the district court’s upward departure, nor do we think the extent of the departure was substantively unreasonable.

b. Upward Variance

Cooke next objects to the district court’s upward variance, arguing that the district court did not identify specific § 3553(a) factors and that it gutted the parties’ agreement on the relevance of the 2015 assault. These arguments are without merit. In stating its reasons for the variance, the district court carefully recited Cooke’s history, it had already discussed the nature of his offense, it discussed the need for the sentence to reflect what it considered to be relevant conduct, and it made clear it was aware of the § 3553(a) factors. A district court “need not ‘categorically rehearse each of the [§ ] 3553(a) factors on the record when it imposes a sentence as long as it is clear that they were considered.’ ” United States v. Townsend, 617 F.3d 991, 994 (8th Cir. 2010) (alteration in original) (quoting United States v. Dieken, 432 F.3d 906, 909 (8th Cir. 2006)). Furthermore, the parties’ “agreement” to consider the 2015 assault nonrelevant was not a plea agreement accepted by the district court, see Fed. R. Crim. P. 11(c)(1)(C), and the district court was under no obligation to disregard what it perceived as relevant conduct. See 18 U.S.C. § 3661. We therefore detect no abuse of discretion and affirm the district court’s sentence.

B. Cantu

Cantu argues: (1) the district court erred in admitting into evidence her text messages and those of her coconspirators; (2) her rights under the Speedy Trial Act were violated; (3) the assistance of her counsel was ineffective; and (4) the evidence was insufficient to convict her.

Cantu challenges the admission of her and Gonzalez’s text messages in evidence, arguing that they are hearsay, that they violate her rights under the Confrontation Clause, and that they were obtained pursuant to overbroad warrants. But despite having requested discovery from the government and having notice in the government’s trial brief that the text messages would be used against Cantu, she did not move in limine for their suppression. The basis for such a motion was reasonably available to her before trial, and she has not shown good cause for her failure to move to suppress the text messages at that time. Consequently, Cantu has waived her right to even plain error review of the admission of that evidence. Fed. R. Crim. P. 12(b)(3)(C), (c)(3); United States v. Harken, 641 Fed.Appx. 638, 639-40 (8th Cir. 2016); see also United States v. Herron, 275 Fed.Appx. 574, 575 (8th Cir. 2008) (“Because Herron did not file a motion to suppress in the district court, we are ‘not in a position to intelligently and responsibly’ conduct plain error review of the matter.” (quoting United States v. Wenner, 417 F.2d 979, 981-82 (8th Cir. 1969))).

Cantu next argues that her Speedy Trial Act rights were violated because she was not brought to trial within the prescribed time. See 18 U.S.C. § 3161(c)(1). But Cantu never moved the district court for dismissal prior to trial, and so she has waived her right to the remedy provided by that statute. Id § 3162(a)(2); United States v. Williams, 605 F.3d 556, 572-73 (8th Cir. 2010).

Cantu also argues her trial counsel was ineffective for failing to object to the admission of the text messages, for failing to assert her rights under the Speedy Trial Act, and for failing to call any witnesses favorable to Cantu. Because a claim on direct appeal of ineffective assistance of counsel usually requires further development of the record, we generally defer such claims to collateral review under 28 U.S.C. § 2255, excepting cases where the obvious result would be a plain miscarriage of justice or inconsistent with substantial justice. United States v. McAdory, 501 F.3d 868, 872-73 (8th Cir. 2007). Although Cantu did raise an ineffective assistance of counsel claim before the district court, the deficiencies in her counsel’s representation alleged below were different from those raised here, and so the record is undeveloped for purposes of this appeal. Further, we are not' persuaded that the interests of justice compel us to deviate from our normal approach. Therefore, we decline to address Cantu’s ineffective assistance of counsel claim, without prejudice to her raising it in a later proceeding.

Finally, Cantu argues the evidence was insufficient to support her conviction because it did not prove that Cantu had knowledge of the conspiracy. On appeal from a bench trial, “[w]e review the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the government, resolving conflicts in the government’s favor, and accepting all reasonable inferences that support the verdict.” United States v. Acosta, 619 F.3d 956, 960 (8th Cir. 2010) (quoting United States v. Scofield, 433 F.3d 580, 584-85 (8th Cir. 2006)). “To convict a defendant of conspiracy to distribute drugs, the government must prove that there was an agreement to distribute drugs, that the defendant knew of the agreement, and that the defendant intentionally joined the agreement.” United States v. Chavez-Alvarez, 594 F.3d 1062, 1066 (8th Cir. 2010). These elements may be proved by direct or circumstantial evidence. Id. at 1067. Here, text messages between Cantu and Gonzalez reference the selling of “ICE,” slang for methamphetamine, identify an individual by the name “main,” (referencing a coconspirator’s street name, “Mane”), and discuss Gonzalez’s payment to Cantu of money for, in the expert opinion of an investigator, the “fronting” of controlled substances. Gonzalez, who was observed engaging in several drug sales, was spotted near Cantu’s motel room shortly before two sales, and possibly seen speaking to her shortly after another. Upon a search of the motel in which Cantu was staying, marked bills from controlled purchases were discovered in Cantu’s purse, inches from cocaine packaged into one-ounce units and near a scale containing cocaine residue. On this evidence, and in light of the deference afforded a district court’s verdict after a bench trial, we affirm Cantu’s conviction.

III. CONCLUSION

For the foregoing reasons, we affirm.

      . The Honorable Stephanie M. Rose, United States District Judge for the Southern District of Iowa.

      . The constitutional right to a speedy trial ceases upon conviction, Betterman v. Mont., - U.S. -, 136 S.Ct. 1609, 1618, 194 L.Ed.2d 723 (2016), and a guilty plea is itself a conviction, United States v. Lincoln, 408 F.3d 522, 525 (8th Cir. 2005). We do not address, and give Cooke the benefit of, the question of whether a guilty plea accepted in a report and recommendation by a magistrate judge and later accepted by a district court operates as a conviction on the day it is given, recommended for acceptance by a magistrate judge, or accepted by the district court.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Mark Allen SULLIVAN, Defendant-Appellant
    No. 16-3163
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 16, 2016
    Filed: April 5, 2017

      Ann Marie Hoffman, Assistant U.S. Attorney, Connie Larson, Assistant U.S. Attorney, U.S. Attorney’s Office, District of South Dakota, Sioux Falls, SD, for Plaintiff-Appellee.
    Bryan Dean, Randall B. Turner, Federal Public Defender’s Office, Pierre, SD, for Defendant-Appellant.
    Mark Allen Sullivan, Pro Se.
    Before KELLY and MURPHY, Circuit Judges, and MAGNUSON, District Judge.

      . The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota, sitting by designation.

   PER CURIAM.

Mark Sullivan pleaded guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343, and was sentenced to a term of imprisonment of 41 months. Sullivan was ordered to pay restitution in the amount of $56,464 to Lowell Lundstrom, Jr., of South Dakota, and in the amount of $48,000 to Paul Rohde, of Kansas. Sullivan appeals his sentence and the Lundstrom restitution order. Because we conclude the district court committed procedural error when it departed upward from the advisory sentencing guidelines, we remand for resentencing. Because we conclude Sullivan’s appeal waiver is enforceable as to the restitution order, we dismiss the appeal of the restitution order.

I. Background

Sullivan sold farm equipment on the internet, buying used tractors and other farm equipment and reselling them. In 2010, Lundstrom sent Sullivan two wire transfers totaling $51,600 for the purchase of a tractor and loader. Lundstrom received the loader but Sullivan provided a different tractor from the one he promised, which broke down and had to be repaired. Lundstrom obtained a default judgment against Sullivan in South Dakota state court in the amount of $56,464.44, reflecting the payments he sent Sullivan and reimbursement for other costs associated with repairing the tractor received.

In September 2015, Sullivan was charged by superseding indictment with two counts of wire fraud based on the two wire transfers Lundstrom had sent Sullivan. He pleaded guilty pursuant to a written plea agreement to one of the counts, and the parties agreed to recommend a sentence of time served. Sullivan also agreed to pay restitution to Lundstrom in an amount to be determined by the court and restitution to Rohde in the amount of $48,000 for a separate transaction. Sullivan further agreed to waive his right to appeal any non-jurisdictional issues except for “any decision by the Court to depart upward pursuant to the sentencing guidelines as well as the length of his sentence for a determination of its substantive reasonableness should the Court impose an upward departure or an upward variance pursuant to 18 U.S.C. § 3553(a).”

A presentence investigation report (PSR) was prepared. The PSR calculated Sullivan’s total offense level as 13 and his criminal history category as II, yielding an advisory sentencing guideline range of 15 to 21 months. The court notified the parties prior to sentencing that it was considering a substantial upward departure from the recommended sentencing Guidelines range based on underrepresentation of criminal history. At the sentencing hearing, the court heard testimony from the government’s case agent, FBI Special Agent (SA) Matt Miller, and Sullivan’s cousin, Roger Sullivan, who delivered farm equipment for Sullivan. Lundstrom also made a statement to the court. As anticipated in the plea agreement, the government and Sullivan both recommended a sentence of time served — about 17 months.

Describing the offense as a “Ponzi scheme,” the district court found that Sullivan had “escaped any punishment to amount to anything in ... various state courts.” After noting the advisory Guidelines range, the district court found “that a criminal history category of II substantially underrepresents the actual criminal history of the defendant, as well as a likelihood that he will commit further acts of fraud. He has committed the same fraud several times.” The court determined that Sullivan’s criminal history category should be VI instead of II, stating that “the proper criminal history category for the defendant is a VI. Not a II, not a III, and not a IV, and not a V. A VI.” Applying criminal history category VI, the court determined Sullivan’s new advisory range was 33 to 41 months and sentenced Sullivan to 41 months’ imprisonment, and three years of supervised release, and ordered him to pay restitution of $56,464.44 to Lundstrom and $48,000 to Rohde, and a $100 special assessment.

II. Discussion

Sullivan challenges his sentence as both procedurally and substantively unreasonable. He also argues the district court’s restitution award to Lundstrom was not supported by the evidence.

A. Sentence

We review the reasonableness of sentences in two parts: first, for significant procedural error, and second, if there is no significant procedural error, for substantive reasonableness. United States v. Barker, 556 F.3d 682, 689 (8th Cir. 2009). “Procedural error includes ... failing to adequately explain the chosen sentence— including an explanation for any deviation from the Guidelines range.” United States v. Scales, 735 F.3d 1048, 1051-52 (8th Cir. 2013) (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). “In reviewing a sentence for procedural error, we review the district court’s factual findings for clear error and its application of the guidelines de novo.” Barker, 556 F.3d at 689.

Pursuant to USSG § 4A1.3, a court may impose an upward departure if “reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.” United States v. Mees, 640 F.3d 849, 854 (8th Cir. 2011) (quoting USSG § 4A1.3(a)(l)). The type of information that may be considered in departing upward under § 4A1.3 includes, inter alia, “[p]rior sentence(s) not used in computing the criminal history category,” such as “sentences for foreign or tribal offenses.” USSG § 4A1.3(a)(2)(A). A sentencing court may also rely upon prior convictions that were too old to be counted and “[p]rior similar adult criminal conduct not resulting in a criminal conviction.” United States v. Azure, 536 F.3d 922, 931 (8th Cir. 2008) (alteration in original) (quoting USSG § 4A1.3(a)(2)(E)).

“When contemplating and structuring such a departure, the district court should consider both the nature and extent of a defendant’s criminal history.” United States v. Hacker, 450 F.3d 808, 812 (8th Cir. 2006). In determining the extent of the departure, “the court shall ... us[e], as a reference, the criminal history category applicable to defendants whose criminal history or likelihood to recidivate most closely resembles that of the defendant’s.” USSG § 4A1.3(a)(4)(A) (emphasis added). We have instructed district courts that “[t]o impose an upward departure under § 4A1.3, the sentencing court first must proceed along the criminal history axis of the sentencing matrix, comparing the defendant’s criminal history with the criminal histories of other offenders in each higher category.” Mees, 640 F.3d at 854 (quoting Azure, 536 F.3d at 931). While we do not require a “ritualistic exercise in which the sentencing court mechanically discusses each criminal history category it rejects en route to the category that it selects,” the sentencing court “must adequately explain why it concludes the intermediary categories fail to meet the purposes of § 4A1.3.” Azure, 536 F.3d at 931 (internal quotation marks, alteration, and quotation omitted). This is especially important when a departure is substantial. Id. at 932.

Here, the PSR assessed Sullivan three criminal history points, based on three pri- or misdemeanor convictions, resulting in a criminal history category II. The PSR listed no other criminal convictions. The PSR also documented a related charge in Kansas, as well as five other arrests on various charges. The disposition of three of these cases was unknown, and the other two had be'en dismissed. The PSR indicated there was “no information available warranting a departure from the advisory guideline range.” At the sentencing hearing, the district court adopted the PSR in its entirety.

In addition to the PSR, the court considered the testimony from SA Miller regarding information he had received about nine prior transactions involving Sullivan faffing to deliver tractors or delivering tractors that were not what the purchasers thought they purchased. Four of the transactions SA Miller testified about were also discussed in the PSR — two of the transactions accounted for two of Sullivan’s criminal history points and one was the pending charge in Kansas. SA Miller also provided additional information about one of the arrests listed in the PSR. SA Miller conceded that he relied on reports from the purchasers or law enforcement reports he had reviewed. The court credited the PSR and SA Miller’s testimony as showing Sullivan was a “con man” who was engaged in a “Ponzi scheme.”

After noting the Guidelines range recommended by the PSR and the sentencing recommendations of the parties, .the court sua sponte departed upward from criminal history category II to category VI, based on what it perceived as Sullivan’s lenient treatment in various state courts and that Sullivan had “committed the same fraud several times.” But in departing upward, the court did not explain why criminal history category VI, as opposed to any other category in between, more accurately represented the seriousness of Sullivan’s criminal history. See Azure, 536 F.3d at 931. The court relied on sentences that were included in the PSR’s calculation of Sullivan’s criminal history category of II, concluding the sentences were too lenient, but it did not explain what the appropriate sentence should have been or how many criminal history points should have been assigned. And in relying on conduct that did not result in convictions, the court likewise did not determine the number of criminal history points that conduct might have received had there been a conviction. See id. at 932. Finally, the court failed to explain how Sullivan’s criminal history equated with the criminal history of other defendants assigned criminal history category VI. Id.; see also § 4A1.3(a)(4)(A).

The court departed from the second lowest criminal history category to the highest and then sentenced Sullivan to the top of the new Guidelines range — a sentence almost two and a half times higher than the sentence both parties recommended. The analysis the district court provided in this case does not adequately explain and support such a significant departure. As in Azure, we conclude the district court’s failure to sufficiently explain its upward departure is a significant procedural error requiring remand. 536 F.3d at 932.

B. Restitution

Sullivan also challenges the court’s order that he pay $56,464.44 in restitution to Lundstrom, arguing that the restitution awarded exceeds the actual loss proved by the government, in violation of the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A. The government urges us to dismiss Sullivan’s appeal of his restitution order based on the appeal waiver contained in his plea agreement. In reviewing a waiver of the right to appeal, we “must confirm that the appeal falls within the scope of the waiver and that both the waiver and plea agreement were entered into knowingly and voluntarily.” United States v. Andis, 333 F.3d 886, 889-90 (8th Cir. 2003) (en banc). “Even when these conditions are met,” we must decline to “enforce a waiver where to do so would result in a miscarriage of justice.” Id. at 890.

We conclude that the restitution order falls within the scope of the appeal waiver. The plea agreement signed by Sullivan and the government provides the following stipulation:

The Defendant hereby waives all defenses and his right to appeal any non-jurisdictional issues. The parties agree that excluded from this waiver is the Defendant’s right to appeal any decision by the Court to depart upward pursuant to the sentencing guidelines as well as the length of his sentence for a determination of its substantive reasonableness should the Court impose an upward departure or an upward variance pursuant to 18 U.S.C. § 3553(a).

Under our precedent, a waiver that extends to “any non-jurisdictional issues” includes restitution within its scope. United States v. Lee, 502 F.3d 780, 780-81 (8th Cir. 2007); United States v. Schulte, 436 F.3d 849, 850 (8th Cir. 2006); United States v. Greger, 98 F.3d 1080, 1081-82 (8th Cir. 1996).

We conclude that Sullivan knowingly and voluntarily waived his right to appeal the restitution order. During the plea colloquy, the court reviewed the plea agreement with Sullivan, including his agreement to pay restitution to Lundstrom and Rohde. The court noted that, except for his right to appeal “an upward departure or upward variance,” Sullivan had “given up all right to appeal.” Sullivan agreed he understood. Sullivan contends that the permissible appeal of the upward departure allows him to appeal any other aspect of the sentence as well. Sullivan’s interpretation of his appeal waiver would render its limitation — the ability to appeal the imposition of an upward departure or variance and to challenge the length of the resulting sentence for substantive reasonableness — meaningless, and we decline to adopt it.

We further conclude that enforcement of the appeal waiver in this case will not result in a miscarriage of justice because “a challenge to a restitution order based on sufficiency of the evidence does not implicate the sort of ‘illegality’ that we have said in Andis might justify voiding a voluntary agreement between the parties.” Schulte, 436 F.3d at 851.

III. Conclusion

For the reasons set forth above, we vacate Sullivan’s sentence and remand for resentencing on the existing record consistent with this opinion, and we dismiss that portion of the appeal seeking review of the restitution order.

      .The total offense level was calculated under USSG § 2B1.1 as follows: a base offense level of 7 pursuant to § 2B1.1(a)(1), a 6-level increase because the loss exceeded $30,000 but was less than $70,000, id. § 2B 1.1 (b)(1)(D), a 2-level increase because the offense was committed through mass-marketing, id: § 2Bl.l(b)(2)(A)(ii), and a 2-level reduction for acceptance of responsibility, id. § 3El.l(a).

      . The PSR assessed Sullivan 3 criminal history points based on a 2008 misdemeanor conviction in Illinois for theft, a 2013 misdemeanor conviction in Missouri for stealing by deceit, and a 2014 misdemeanor conviction in Iowa for theft. The 2013 and 2014 convictions involved tractor-related transactions. No other convictions were noted.

      . Sullivan was arrested on February 13, 2015, and detained pending trial.

      . We note that simply relying on these convictions themselves would not be appropriate as USSG § 4A1.3 allows the court to rely on "[p]rior sentence(s) not used in computing the criminal history category.” USSG § 4A1.3(a)(2)(A) (emphasis added).

      . Because we conclude the sentence imposed was procedurally unreasonable, we do not need to consider the substantive reasonableness of the sentence. See Azure, 536 F.3d at 934.