author: RIPPLE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles TANKSON, Defendant-Appellant.
    No. 14-3787
    United States Court of Appeals, Seventh Circuit.
    Argued November 13, 2015
    Decided September 12, 2016

      Damon M. Cheronis, Chicago, IL, Ian M. Barney, for Defendant-Appellant.
    Carol A. Bell, for Plaintiff-Appellee.
    Before POSNER, RIPPLE, and SYKES, Circuit Judges.
   RIPPLE, Circuit Judge.

Following an extensive sting operation by federal law enforcement of a drug distribution ring in Chicago, Charles Tankson was indicted on .three counts of distributing 100 grams of heroin and one count of distributing a detectable amount of heroin, both in violation of 21 U.S.C. § 841(a)(1). He entered a written plea declaration' without a plea agreement. At sentencing, the Government introduced Mr. Tankson’s post-arrest statement to authorities in order to establish significant additional drug quantities as relevant conduct. The district court credited the statement and, on the basis of the newly established drug quantities, both increased his offense level under the quantity table and determined that he was subject to the career offender guideline. The court calculated a guidelines range of 360 months to life but sentenced him below the applicable guidelines range to 228 months’ imprisonment. Mr. Tankson now appeals his sentence. He challenges the district court’s reliance on his post-arrest statement in determining his relevant conduct. He also contends that the court, in calculating his criminal history category, erred in including a 1995 conviction. We conclude that the district court was entitled to credit his statement and to consider the 1995 conviction. Accordingly, we affirm the judgment of the district court.

I

BACKGROUND

A.

In 2012 and 2013, the FBI investigated a drug and gun trafficking operation headed by Walter Blackman, a member of the Black Disciples gang. Blackman’s operation distributed heroin, powder cocaine, and crack in an area on the far south side of Chicago. The FBI’s investigation employed confidential sources, controlled buys, wiretaps of Blackman’s phones, traditional surveillance, and other information to uncover the scope of Blackman’s activities and to identify the individuals involved in his network. In the course of this investigation, the FBI identified Mr. Tankson as Blackman’s heroin supplier. On four occasions between November 2012 and January 2013, the FBI became aware of transactions between Mr. Tankson and Blackman. Each involved at least 100 grams of heroin. The FBI intercepted calls arranging these purchases and surveilled or otherwise monitored the actual exchanges. On at least one occasion, Black-man resold the product to a confidential informant; subsequent testing confirmed the presence of heroin. In April 2013, Mr. Tankson was one of eighteen individuals arrested on charges related to Blackman’s operation.

Once in custody, Mr. Tankson waived, orally and in writing, his right to consult with an attorney under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). FBI Special Agents Ward Yoder and Joshua Rongitsch interviewed him on April 4, 2013. In the interview, he gave the agents significant details about his relationship with Blackman’s operation. The interview was not recorded, but was summarized by the agents in a report drafted the following day.

Mr. Tankson told the agents that he and Blackman had grown up together and that both were members of the Black Disciples gang. He admitted to participating in the four transactions ultimately charged in the indictment and indicated that three of them involved 100 grams of heroin and that the fourth involved 150 grams. When agents played the taped conversations for Mr. Tankson, he identified his voice and Blackman’s, explained code words, and described his transactions in detail. He identified a photo of heroin packaged and sold to Blackman. He also described his being stopped by law enforcement after a sale to Blackman in which the authorities had seized $3,500 in drug proceeds.

In addition to his statements about his relationship with and sales to Blackman, Mr. Tankson also gave statements about his own heroin suppliers and described more extensive trafficking activities. He stated that he had sold marijuana growing up, but began selling powder cocaine and heroin after meeting “ ‘a Mexican man’ ” at an auto repair shop near 1-55 and Western Avenue in Chicago. Although he described the shop as three blocks south of 1-55 on Western, Mr. Tankson could not locate the shop on a map or provide any further detail. For a few months after their initial meeting, the “Mexican man” sold Mr. Tankson marijuana, and, when Mr. Tank-son earned his trust, began selling him powder cocaine. Mr. Tankson admitted to purchasing roughly 1.5 kilograms of powder cocaine from this supplier, until the supplier was robbed of proceeds and subsequently ceased dealing drugs. The supplier then introduced Mr. Tankson to a second supplier, again at'the auto repair shop.

Mr. Tankson met the second supplier only once. He described him as Mexican, short, thin, and with a short, black, military-style haircut. The two men communicated by T-mobile prepaid drop phones that were changed on a frequent basis at the supplier’s request. When Mr. Tankson wanted to make a purchase, he would call the supplier’s phone number and would be given a time and location for the buy. He recalled using a Mexican country code to place the calls, although he could not recall what the code was. He no longer had the phone with the second supplier’s number in his possession because he had ceased heroin dealing three months earlier, after the police stopped him and seized the $3,500. Mr. Tankson stated that he would only place an order for as much heroin as he could sell on a specific day because he did not want to store any additional product. He estimated that he placed 100 orders with this second supplier over two years, each for between 300 and 400 grams of heroin. He purchased the heroin at $6,500 per 100 grams, which he then resold at $8,000. The supplier changed couriers' often, but they were generally other Mexican men in their forties, driving minivans with car seats or plain work trucks. Mr. Tankson said that the buys occurred in vehicles by window-to-window transactions at the Ford City Mall in Cicero, Illinois. He stopped all trafficking activity in January 2013, after the police stopped him with the proceeds of a sale to Blackman.

B.

On May 2, 2013, Mr. Tankson was charged in a four-count indictment with distribution of heroin in violation of 21 U.S.C. § 841(a)(1): three counts of distribution of 100 grams or more of heroin and one count of distribution of a detectable amount of heroin.

During his pretrial proceedings, Mr. Tankson filed a motion to suppress his post-arrest statement confessing to the charged offenses. He contended that he had not received adequate Miranda warnings and had not made many of the statements contained in the agents’ report. Indeed, he testified that, in his numerous arrests, he never had been advised of his Miranda rights by any law enforcement officer. He admitted trafficking marijuana, but denied involvement in heroin trafficking. The court held a hearing at which Mr. Tankson and the interviewing officer, Special Agent Ward Yoder, each testified. Following the hearing, the court denied the motion and made a specific finding that Agent Yoder had testified credibly and Mr. Tankson had testified falsely. Accordingly, it concluded that the Government had proved by a preponderance of the evidence that adequate warnings had been provided and that Mr. Tankson had knowingly waived them.

Two days before his trial was set to begin, Mr. Tankson entered a written plea on all charges, including admitting the factual basis for the four charged heroin sales. He was silent with respect to the remainder of his prior confession.

The presentence investigation report (“PSR”) credited the post-arrest statement and concluded that Mr. Tankson had distributed 427.1 grams of heroin to Black-man and an additional thirty kilograms to other customers between 2011 and 2013. The PSR identified all of the sales as part of an ongoing pattern of conduct. Although his sales were not all related to Blackman and his particular ring, they all used a common accomplice (the second supplier) and an identical method and had an identical purpose. The probation officer concluded that the connections were sufficient to draw the additional thirty kilograms within the relevant conduct guideline, U.S.S.G. § lB1.3(a)(2), which resulted in a base offense level of 38. The PSR also denied credit for acceptance of responsibility and instead applied a two-level enhancement for obstruction of justice because Mr. Tankson had lied about the extent of his criminal conduct in his suppression hearing testimony and had delayed his plea until the eve of trial. The PSR found that his 12 criminal history points qualified him for category V, but also found him to be a career offender under § 4Bl.l(a) based on two predicate controlled substance convictions. His offense level was therefore 40, with a criminal history category of VI. The resulting- Guidelines range was 360 ‘ months’ to life imprisonment.

At sentencing, Mr. Tankson called Special Agent Yoder as well as a private investigator hired by the defense. The investigator testified that there were no auto body shops within the vicinity that Mr. Tankson identified in his post-arrest statement. On cross-examination, the prosecutor clarified that Mr. Tankson’s statement had referenced an auto repair shop, and the investigator admitted that there was one such shop four blocks from the intersection of 1-55 and Western Avenue. (Mr. Tankson had said three.) Mr. Tankson’s counsel asked Special Agent Yoder numerous questions about the degree of followup given to the details of Mr. Tankson’s statement, such as whether he had looked for a tire shop or tried to identify the suppliers- or their phone numbers. Special Agent Yoder confirmed that they had not expanded their investigation of the Black-man enterprise and their existing thirty targets to include Mr. Tankson’s suppliers. The agent said that the decision to circumvent the investigation was a resource issue. He did state, however, that he believed Mexican country codes had been located on the three or four phones seized from Mr. Tankson at the time of his arrest.

Mr. Tankson’s counsel argued that, because the relevant conduct had become the primary driver at sentencing, the court could use a higher standard of proof than preponderance of the evidence if it chose. He also contended that the Government had 'made no attempt to corroborate Mr. Tankson’s statements in the post-arrest interview. Further, he argued that the standard is reliability, and “[jjust because Mr. Tankson said it ..., allegedly said it, if you find that he said it, doesn’t mean it is reliable.” He also argued that a common scheme or plan is not established simply because the defendant engaged in other drug transactions, citing United States v. McGowan, 478 F.3d 800 (7th Cir. 2007).

The Government argued that the information was reliable because Mr. Tankson’s statement generally was corroborated. First, his criminal record showed a period of drug trafficking stretching back more than a decade. Second, various specific details were confirmed independently by other evidence including the cash amounts he claimed were involved, the drug quantities involved in the charged transactions, and the use of drop phones to contact his supplier. The Government also maintained that Mr. Tankson’s ability to access large quantities of heroin in short periods of time suggested that he had an ongoing relationship with a supplier. Mr. Tankson’s statements also matched his personal details regarding his wife, his parents, and his gang affiliation. In the Government’s view, his truthfulness about these matters tended to suggest that he also spoke truthfully to the officers when he described his relationship with the suppliers and with Blackman. Finally, the Government submitted that because the statement was against his own interest it should be deemed more reliable.

The district court, using the preponderance standard, determined first that Mr. Tankson actually had made the post-arrest statement and that Agent Yoder had testified credibly about the interview. The court, noting that it already had found at the suppression hearing that the procedures followed by Agent Yoder were appropriate, also found the statement reliable because it was given in a “noneoercive environment.” In the court’s view, that consideration increased the reliability of the statement “because ordinarily people do not make incriminating statements about themselves unless it is true.” The court concluded that Mr. Tankson in fact did traffic the thirty to forty kilograms of heroin set forth by the PSR.

Turning to the legal standard for relevant conduct, the court concluded that it was “part of a common scheme or plan or, at the very least, the same course of conduct.” The court relied on the fact that it involved the same drug, from the same supplier, over the same timeframe as the charged conduct.

Addressing Mr. Tankson’s eligibility for the career offender enhancement, the court looked at two Illinois controlled substance convictions, including one for which Mr. Tankson had completed his prison term in July 1997. Under U.S.S.G. § 4A1.2(e)(l), a predicate offense can be counted only if the offense or the defendant’s incarceration for the offense occurred within fifteen years of the present offense. Defense counsel argued that this earlier predicate was too old to qualify because Mr. Tankson’s release from prison had occurred fifteen years and four months before the date of the first charged offense. The court disagreed with this argument and counted both state offenses because the earlier state offense had occurred within fifteen years of the earliest relevant conduct related to the crime for which he was being sentenced. Accordingly, the court determined that the enhancement applied.

Finally, the court concluded that Mr. Tankson was not entitled to a reduction for acceptance of responsibility and instead would receive, on the basis of his false testimony at the suppression hearing, an enhancement for obstruction. Because of an amendment to the guidelines after the PSR was drafted, Mr. Tankson’s base offense level was 36, and his total offense level was 38. The court determined that it was appropriate to sentence him as a career offender (criminal history category VI), but noted as well that, even without that device, his range at category V would be the same — 360 months’ to life imprisonment.

The Government requested a below-guidelines sentence of twenty years. Mr. Tankson requested the ten-year mandatory minimum. After reviewing the § 3553(a) factors, including Mr. Tankson’s support of twelve children, his criminal history, and his accountability for “an enormous quantity of a powerfully addictive and destructive drug” that translated to “tens of thousands of individual uses,” the court imposed a below-guidelines sentence of nineteen years or 228 months’ imprisonment as well, as both standard and special conditions of supervised release.

Mr. Tankson now challenges whether the additional drug quantities accepted at sentencing were based on reliable evidence, whether those amounts were related to the offenses of conviction such that they were properly considered relevant conduct, and whether he was subject to the career offender enhancement.

II

DISCUSSION

Mr. Tankson challenges the portion of his sentence based on the additional relevant conduct found by the court, specifically, distribution of thirty additional kilograms of cocaine over the 400 grams involved in his offense of conviction. He contends that his post-arrest statement, memorialized in Agent Yoder’s report, is neither reliable nor sufficient to carry the Government’s burden. In any event, he continues, the statement does not establish the relationship to the charged conduct necessary to satisfy the relevant conduct guideline, U.S.S.G. § lB1.3(a)(2).

The standards governing our review of sentencing questions are well established. A sentencing court must always “begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). As part of the proper guidelines calculation, when drug quantity is at issue, the sentencing court must make a drug quantity finding. See United States v. Cooper, 767 F.3d 721, 731 (7th Cir. 2014); United States v. Claybrooks, 729 F.3d 699, 706 (7th Cir. 2013). We review the district court’s quantity finding under the highly deferential dear-error standard. Claybrooks, 729 F.3d at 706; United States v. Longstreet, 567 F.3d 911, 924 (7th Cir. 2009).

A.

We begin with Mr. Tankson’s challenge to the statement’s reliability. In a shift from his position at sentencing, he no longer contends that the post-arrest statement, as reported by Special Agent Yoder, is not an accurate representation of his statements to authorities. He now contends that his own voluntarily given statement, taken on its face, is not sufficiently reliable to form the basis for the district court’s drug quantity findings.

A “defendant has a due process right to be sentenced on the basis of reliable information,” United States v. Zehm, 217 F.3d 506, 514 (7th Cir. 2000), that is, on the basis of “information that has sufficient indicia of reliability to support its probable accuracy,” United States v. Smith, 674 F.3d 722, 732 (7th Cir. 2012) (internal quotation marks omitted); see also United States v. Johnson, 489 F.3d 794, 798 (7th Cir. 2007). Nevertheless, the Government’s burden at sentencing is substantially lower than at trial: the court is not limited to the evidence in support of the conviction and proved at trial or admitted in the plea; instead, the court must only find that a “preponderance of reliable evidence supports the drug quantity finding.” Cooper, 767 F.3d at 731. We review the sentencing court’s determination of reliability for an abuse of discretion. See United States v. Mays, 593 F.3d 603, 608 (7th Cir. 2010). We review the ultimate factual finding of- the district court as to the quantity of drugs attributable to a defendant for clear error. United States v. Block, 705 F.3d 755, 759 (7th Cir. 2013).

In support of his argument that his statement is unreliable, and therefore cannot form the basis for the ultimate drug quantity finding, Mr. Tankson relies largely on United States v. Robinson, 164 F.3d 1068 (7th Cir. 1999), and United States v. Morrison, 207 F.3d 962 (7th Cir. 2000). But these cases are of no assistance to Mr. Tankson. His statement cannot be characterized as “patently unreliable.” Morrison, 207 F.3d at 968 (characterizing a statement given in Robinson). More fundamentally, the statement at issue here is Mr. Tankson’s own statement. By contrast, the statements in Morrison were drug-addict statements, utterances that “courts should carefully scrutinize.” Id. at 968.

In Robinson, we reviewed a sentence based on the massive drug quantities derived from a single witness’s statement. Although included in the PSR, this statement was untested by cross-examination and was not independently evaluated by the district court for credibility. We acknowledged that the district court was not required to hear from the witness, but stated that it was “not a terribly bad idea” when the statement was the support for such a significant proportion of the quantity. Robinson, 164 F.3d at 1070. More importantly, however, we noted that there were problems with the particular statement in Robinson that made it incredible on its face and that, consequently, the district court should have realized that it was necessary to scrutinize its reliability before allowing it to form the basis of the sentence. By contrast, in Morrison, we upheld a sentence where statements included in the PSR increased the defendant’s drug quantity one hundredfold. 207 F.3d at 968-69. Although these statements came from several witnesses, who were drug addicts, the statements sufficiently corroborated one another and were each internally consistent.

In these cases, as in others, we have said that a district court should exercise caution when the Government seeks a long sentence on the basis of relevant conduct significantly greater than the charged offense. Several considerations lead us to believe that the district court exercised the requisite caution. First, Mr. Tankson’s claim is much more akin to the objections that we reviewed in United States v. Johnson, 342 F.3d 731 (7th Cir. 2003). There, as here, the defendant challenged the reliability of his own post-arrest statement on drug quantity. In rejecting that challenge, we stated:

Self-incriminating statements such as Johnson’s, which was clearly against his penal interest, “have long been considered reliable enough for use at trial ..., so we cannot say that they are too unreliable for use at sentencing.” United States v. Szakacs, 212 F.3d 344, 352-53 (7th Cir. 2000). Indeed, we have held that a drug dealer’s self-in-criminating statement to a drug enforcement agent, which was offered at sentencing solely through the testimony of the agent (as opposed to a written confession or testimony by the dealer), was sufficiently reliable because “[n]o one was more qualified than [the dealer] himself to put a number on the amounts of cocaine he was purchasing and reselling.” United States v. Contreras, 249 F.3d 595, 602 (7th Cir. 2001).

Johnson, 342 F.3d at 734 (alterations in original). Moreover, we cannot accept Mr. Tankson’s suggestion that the statement is not sufficiently corroborated because the Government did not identify any “enormous caches of money.” He points out that the quantity he attributed to himself, at the prices he identified, would have resulted in several hundred thousand dollars in profit. There was evidence in the record, however, of many potentially tainted assets: vehicles, property, and a $6,000 diamond-studded watch. In addition, Mr. Tankson supported twelve children and his parents. In any event, although evidence of an otherwise “unexplained, lavish lifestyle” may be admissible in a drug-related prosecution, see United States v. Smith, 308 F.3d 726, 737 (7th Cir. 2002), we have not required the Government to make such a showing.

Mr. Tankson has not identified any statement of his that is problematic or incredible on its face such that it should have given investigators pause and provoked a more thorough fact-checking of his own admissions. He simply submits that his statement was vague because although he recalled using drop phones and dialing a Mexican country code, he could not remember what numbers he had dialed. Although a statement’s level of detail can bolster or reduce its reliability, see Johnson, 489 F.3d at 798, we cannot say that his statement was so lacking in detail as to be unreliable. It explains with sufficient specificity how Mr. Tankson developed his contacts and carried out his trafficking activities.

Mr. Tankson also asserts that that the Government produced no corroborating evidence of any of the additional, uncharged drug quantities, did not identify a single other customer, and did not attempt to corroborate his statements by visiting either the auto repair shop where he met his suppliers or the mall where he made his purchases. We already have rejected the general argument that the Government is required to corroborate a defendant’s own statements in order to use them as the basis of a drug quantity calculation. Mr. Tánkson’s statement presents no occasion for an exception to that general rule. Indeed, Mr. Tankson’s statement has been corroborated in important material respects. He was arrested on the basis of a sting operation, and his admissions match the facts as known to the officers. Although his statement extends well beyond those facts to other trafficking behavior, that additional behavior was consistent with the observed and known transactions. Finally, the statement was given voluntarily to the authorities. Nothing in the record suggests a plausible reason why Mr. Tankson would have inflated his involvement in drug trafficking in his confession. The district court, therefore, did not abuse its discretion when it took Mr. Tankson’s statement at face value. Consequently, its quantity calculation based on that statement certainly is not clear error.

B.

Mr. Tankson next contends that, even if the drug quantities are established sufficiently by his statement, the sales attributed to those quantities do not qualify as “relevant conduct” under the guideline. The district court’s application of the guidelines provision concerning relevant conduct to the uncharged drug quantities is a factual issue that we review for clear error. United States v. Delatorre, 406 F.3d 863, 866 (7th Cir. 2005).

The governing principles are well established. The relevant conduct guideline requires the sentencing court to aggregate, in calculating a base offense level, “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant” “that were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(l)(A), (a)(2). As we have explained,

[i]n United States v. Duarte, we noted that this “relevant conduct” or “aggregation rule” “grants the government a fearsome tool in drug cases. It permits prosecutors to ‘indict defendants on relatively minor offenses and then seek enhanced sentences later by asserting that the defendant has committed other more serious crimes for which, for whatever reason, the defendant was not prosecuted and has not been convicted.’ ” 950 F.2d 1255, 1263 (7th Cir. 1991). However, the relevant conduct rule has limits. The rule allows sentencing courts to consider quantities of drugs not specified in the counts of conviction, provided “the unconvicted activities bore the necessary relation to the convicted offense.”

United States v. Ortiz, 431 F.3d 1035, 1040 (7th Cir. 2005). In determining whether additional drug quantities are relevant,

[t]he critical inquiry is whether the offenses are “sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses.” In making this determination, the court may look to the “similarity of the offenses, the regularity (repetitions) of the offenses, and the interval between the offenses.”

United States v. White, 519 F.3d 342, 347 (7th Cir. 2008) (citation omitted). We therefore have approved a sentencing court’s decision to count all amounts that comprise a “continuous pattern of drug trafficking,” id. at 348. See, e.g., United States v. Farmer, 543 F.3d 363, 373 (7th Cir. 2008) (“Where the defendant’s convicted offense was merely the latest drug sale in an unbroken series of deals regularly made, that is sufficient to find the defendant’s prior drug transactions were part of the same course of conduct as the offense of conviction.”).

■ Now that the governing principles have been set forth, we review precisely what Mr. Tankson’s statement says about his trafficking activity. He stated that he met his first heroin supplier “about two years ago.” He then stated that he sold marijuana “[flor a few months” until this supplier trusted him, and then began selling heroin. After the first supplier was robbed, he was introduced to a second supplier. He described their transactions as occurring over prepaid drop phones; he called the supplier whenever he needed heroin, ordering only as much as he could sell on a given day. During the call, he received an instruction on the place to . meet couriers (usually the Ford City Mall). The report of his statement continues:

Over the last two years, TANKSON estimated that he plaeéd approximately 100 heroin orders from Mexican 2. TANKSON estimated that each of the 100 heroin orders was for approximately 300 grams to 400 grams of heroin. Mexican 2 charged $6,500 per 100 grams of heroin and TANKSON sold the heroin for $8,000 per 100 grams.... Mexican 2 changed his couriers often. The transactions with the couriers took place from their vehicles in the parking lot, window-to-window from TANKSON’s car to the courier[’]s car. TANKSON provided money and picked up the heroin during the same transaction. TANKSON remembered Mexican 2 telling him that he needed to change vehicles and phones often to avoid law enforcement detection, specifically wire taps and tracking devices.
TANKSON ceased selling heroin following a law enforcement encounter when police seized approximately $3,500.00 [Aforementioned Till recordings surrounding 01/03/2013 transaction.] of narcotics proceeds from TANK-SON ..., because TANKSON thought the police were on to his narcotics sales.[]

The district court found that the statement established that these transactions involved the same drug that he sold to Blackman during the same timeframe. As the Government notes, the statement also establishes a common accomplice (the second supplier), a common modus operandi (the way orders were placed, the size of the orders, the manner of pickups, and the pricing), and a common purpose of a large-quantity, high-turnover trafficking operation. Although Mr. Tankson now claims that we do not know when the 100 transactions with the second supplier took place, the only reasonable reading of his statement is that they took place with some regularity from the time he met the supplier until he stopped dealing after his encounter with law enforcement. The suggestion in his appellate brief that he may have had 100 separate transactions with the suppliers at the beginning of the two years on 100 consecutive days is an implausible reading of his statement. Moreover, even if it did represent a permissible view of the evidence, it would not justify reversal, especially under the clear error standard. See Block, 705 F.3d at 759-60; United States v. Marty, 450 F.3d 687, 690 (7th Cir. 2006).

We have looked skeptically at claimed relevant conduct that involves drug sales bearing little resemblance to these patterns. See, e.g., Ortiz, 431 F.3d at 1041-42 (finding no relevant conduct when there was a ten-month gap between charged conduct and relevant conduct and where the offenses were not sufficiently similar because they involved different drugs, a smaller scale operation, and significantly smaller drug quantities). This case presents no such situation. The evidence before the district court certainly justified the conclusion that Mr. Tankson had engaged in a continuous pattern of reselling drugs that he had acquired from the second supplier to individuals including Blackman. The relevant conduct determination is not clearly erroneous.

C.

Finally, Mr. ' Tankson challenges the district court’s decision to apply the career offender enhancement of Guideline § 4B1.1(a). After calculating Mr. Tankson’s base offense level, the district court, accepting the view in the PSR, determined that Mr. Tankson qualified as a career offender. We review the application of the guideline de novo. United States v. Kindle, 453 F.3d 438, 440 (7th Cir. 2006).

To attain career offender status under the guidelines a defendant must be eighteen years or older at the time of the present offense; that offense must be for a crime of violence or for a controlled substance offense, and the defendant must have two prior felony convictions of either a crime of violence or of a controlled substance offense. See U.S.S.G. § 4B1.1(a). Only prior felony convictions resulting in a term of imprisonment exceeding one year and one month may be counted. Moreover, the person’s sentence must have been imposed within 15 years of the “commencement of the instant offense,” or have resulted in the defendant being incarcerated during any part of the same 15 year period. Id. § 4A1.2(e)(l). According to application note 8 to § 4A1.2, “the term ‘commencement of the instant offense’ includes any relevant conduct.” The PSR and the district court counted a 1995 offense for which Mr. Tankson was paroled in July 1997 because the relevant conduct for the present offense stretched back to January 2011. As Mr. Tankson noted both here and before the district court, this argument is entirely dependent on the court’s conclusions with respect to relevant conduct. Because we have concluded that the district court did not clearly err in its relevant conduct determination, this argument is also without merit.

Concliision

The district court did not abuse its discretion in determining that Mr. Tankson’s voluntary post-arrest statement to the authorities was sufficiently reliable to establish the significant drug quantities attributed to Mr. Tankson at sentencing. Nor did the court clearly err in determining, on the facts before it, that those quantities fit within the relevant conduct guideline. Our determination that there was no reversible error on the relevant conduct issue necessarily forecloses an argument on the career offender enhancement. Accordingly, there was no error in the adjudication of Mr. Tankson’s sentence. The judgment of the district court is affirmed.

AFFIRMED.

      . R. 48-3 at 3.

      . See R. 157 at 43-44 (Sent. Tr.).

      . Id. at 61.

        . Id. at 63.

      . Id. at 77.

      . Id.

      . Id. at 79.

      . The written record of his post-arrest statement and the Government’s brief in this case state that Mr. Tankson has eleven children. As Mr. Tankson's testimony at sentencing and the PSR make clear, he has twelve children. Compare Appellee’s Br. 39, with R. 157 at 110.

      . R. 157 at 112.

      . Although Mr. Tankson’s brief quotes United States v. Morrison, 207 F.3d 962, 968 (7th Cir. 2000), for the proposition that "[w]e will not allow the disparity between conduct disclosed at sentencing to enhance a defendant’s sentence to the degree that the sentencing hearing becomes a tail that wags the dog of the substantive offense,” Appellant's Br. 14 (internal quotation marks omitted), he does not contend that the district court could not base the sentence on a quantity derived primarily from relevant, as opposed to charged, conduct. See United States v. Johnson, 342 F.3d 731, 735-36 (7th Cir. 2003) (affirming sentence based on drug quantity calculation in which more than ninety-nine percent was based on relevant conduct and citing similar cases). He does not press in diis court the argument, made in the district court, that his is "one of those rare instances” in. which a standard of proof higher than preponderance is appropriate because of the "dramatic increase” in guidelines calculations caused by the relevant conduct. Cf. id. at 736. In any event, given the strength of the evidence here, this argument is without merit.

      . Notably, at an earlier suppression hearing, the district court found that the statement was voluntarily given in a noncoercive environment and had credited the statement and Agent Yoder's testimony in support of it. See R. 113 at 157-58; R. 157 at 77. The court also had concluded that Mr. Tankson's later testimony regarding the statement was false. See R. 113 at 156-57.

      . Appellant's Br. 18.

      . See United States v. Contreras, 249 F.3d 595, 602 (7th Cir. 2001) (specifically noting that there was "no independent evidence corroborating [the defendant’s] post-arrest statement” and concluding that the court was still "not preclude[d] ... from relying on it”). “The requirement of reliable evidence ... is a limitation on the court’s consideration of hearsay and other 'evidence with uncertain provenance.'" United States v. Smith, 674 F.3d 722, 732 (7th Cir. 2012) (emphasis added).

      . See R. 113 at 158 (hearing on Mr. Tank-son’s motion to suppress); R. 157 at 77.

      . More specifically, the application notes provide:
      (9) "Common scheme or plan” and “same course of conduct” are two closely related concepts.
      (A) Common scheme or plan. For two or more offenses to constitute part of a common scheme or plan, they must be substantially connected to each other by at

        least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi. For example, the conduct of five defendants who together defrauded a group óf investors by computer manipulations that unlawfully transferred funds over an eighteen-month period would qualify as a common scheme or plan on the basis of any of the above listed factors; i.e., the commonality of victims (the same investors were defrauded on an ongoing basis), commonality of offenders (the conduct constituted an ongoing conspiracy), commonality of purpose (to defraud the group of investors), or similarity of mo-dus operandi (the same or similar computer manipulations were used to execute the scheme).
      (B) Same course of conduct. Offenses that do not qualify as part of a common scheme or plan may nonetheless qualify as part of the same course of conduct if they are sufficiently connected or related to-each other as to wairant the conclusion that they are part of a single episode, spree, or ongoing series of offenses. Factors that .are appropriate to the determination of whether offenses are sufficiently connected or related to each other to be considered as part of the same course of conduct include the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses. When one of the above factors is absent, a stronger presence of at least one of the other factors is required. For example, where the conduct alleged to be relevant is relatively remote to the offense of conviction, a stronger showing of similarity or regularity is necessary to compensate for the absence of temporal proximity. The nature of the offenses may also be a relevant consideration (e.g., a defendant’s failure to file tax returns in three consecutive years appropriately would be considered as part of the same course of conduct because such returns are only required at yearly intervals).
      U.S.S.G. § 1B1.3 n.9 (2014) (emphasis added).

      . R. 48-3 at 3.

      . Id. at 4.

      . Id. at 4 (second bracketed material in original).

      . See also United States v. Purham, 754 F.3d 411, 414-15 (7th Cir. 2014) (finding two transactions, two years apart, lacking in common accomplices and modus operandi, were not sufficiently related for relevant conduct purposes, even though they involved delivery of same drug to same town); United States v. Bacallao, 149 F.3d 717, 721 (7th Cir. 1998) (“[T]he PSI establishes only one common element between the charged offense and the one-kilogram transaction: the relationship between Saunders and Bacallao. This link is not enough, standing alone, to show that the transaction was part of the same course of conduct or common scheme or plan as the offense of conviction. The record contains no evidence establishing, for instance, relevant dates, common victims, or details concerning the manner in which the kilogram of cocaine was acquired and distributed.”). Nevertheless, we have not hesitated to count quantities when the necessary links exist. See, e.g., United States v. Vaughn, 722 F.3d 918, 932 (7th Cir.), cert. denied, — U.S. —, 134 S.Ct. 541, 187 L.Ed.2d 388 (2013) (“When a substantial period of time exists between drug offenses without any intervening activity, it is possible to conclude that the defendant put his criminal activity on hold during that period of time. But where a defendant sells drugs, albeit to different purchasers, for an extended period of time with little or no break leading up to the charged offense, it is much more likely that the sales are part of the same common scheme or plan as the offense of conviction."); United States v. Crockett, 82 F.3d 722, 730 (7th Cir. 1996) (finding links established a common scheme or plan when there was a common accomplice, a common purpose to sell cocaine, and a common mo-dus operandi of meeting in a restaurant and proceeding to another location to transfer drugs).

      . See Appellant’s Br. 28-29; R. 157 at 83.

      . Moreover, as the district court noted, even without the increase to a criminal history category of VI, the applicable guidelines range for an offense level of 38 at criminal history category V would still have been 360 months to life. See R. 157 at 88.


source: Caselaw Access Project

author: MANION, Circuit Judge.

license: Public Domain

text:
    Dan DAVIES, Plaintiff-Appellant, v. Karlen BENBENEK, et al., Defendants-Appellees.
    No. 14-2558
    United States Court of Appeals, Seventh Circuit.
    Argued December 3, 2015
    Decided September 12, 2016

      Jeffrey J. Neslund, Robert J. Robertson, Washington, DC, for Plaintiff-Appellant.
    Mary Anne Victoria Spillane Matkus, Myriam Z. Kasper, Jonathon D. Byrer, Stephen G. Collins, Defendants-Appellees.
    Before WOOD, MANION, and HAMILTON, Circuit Judges,
   MANION, Circuit Judge.

Plaintiff Dan Davies sued Chicago police officer Karlen Benbenek for using excessive force when responding to a domestic distúrbance at Davies’ home in the summer of 2010. A trial was held and the jury found for Officer Benbenek. On appeal Davies challenges several of the district court’s evidentiary rulings, but his arguments are without merit. Because the evidence challenged by Davies was used for a permissible purpose and was not unduly prejudicial, we affirm the district court’s entry of judgment for Officer Benbenek.

I. BaCkground

On June 24, 2010, Dan Davies and his then-girlfriend Lucille ‘Whitehead got into a physical altercation in Davies’ bedroom. Whitehead managed to call 911 and reported that she and Davies had gotten into an argument and that he had “pulled a gun” on her. Several Chicago police officers, including Officer Karlen Benbenek, responded to the call. The officers kicked down the door to Davies’ home because no one answered after they knocked and announced their presence. When the officers ■entered they encountered Davies, who is paralyzed from the waist down, sitting in his wheelchair. Davies’ nephew was also there.

According to the police, Davies was very-angry with them for being in his house. He used profanity, yelled at them, told them to get out, and talked about suing them. The officers proceeded to search the house and discovered illegal items in Davies’ bedroom. Davies asked the police if his nephew could “take the rap” for the items, but the police declined the request. Davies then became increasingly agitated and again threatened to sue the officers and told them he had “sued before.” He also spat on Officer Benbenek and made a foul comment about a tongue-piercing she had at the time. When Officer Benbenek told Davies he would be charged for spitting on her, Davies threw himself from his wheelchair onto the floor, where he continued telling the officers that he would sue.

Davies paints a markedly different picture of his encounter with Officer Benbe-nek. He testified that, once he commented on her tongue-piercing, she grabbed him by the hair and punched him in the face multiple times, and that he later “w[o]ke up” on the floor choking on his own blood.

After Davies ended up on the ground, the officers called for an ambulance and Davies was taken to the hospital. The attending physician testified that Davies had sustained a fractured femur that was consistent with a fall. He also testified that Davies had severe osteoporosis which made his bones more susceptible to breaking through minor trauma.

Davies subsequently brought this civil action against Officer Benbenek under 42 U.S.C. § 1983, alleging that she used excessive force during the disputed encounter of June 24, 2010. Before trial, the parties filed motions in limine seeking a ruling on whether Officer Benbenek could offer testimony that Davies, in the course of threatening to sue the responding officers, told them that he had sued before. The defense also sought to present testimony that certain unidentified “items” were recovered from Davies’ home, and that Davies was distraught when the police declined his request to pin possession of the items on his nephew. Over Davies’ objection, the court ultimately admitted the proposed testimony at trial. The admitted testimony was not offered to prove that Davies had a prior history of litigation, nor did it include any- description of the items found in Davies’ home. Following trial the jury rendered a verdict for Officer Benbenek, and the district court entered judgment accordingly.

II. DISCUSSION

Davies’ appeal focuses on the district court’s evidentiary rulings. He argues that the district court erred by allowing the responding officers to testify (1) that he told them he had sued before, and (2) that he became upset when they refused to hold his nephew responsible for the items that were discovered in his home. Davies contends that this testimony should have been excluded as impermissible character evidence under Federal Rule of Evidence 404(b), and as unfairly prejudicial under Federal Rule of Evidence 403.

We review the district court’s ev-identiary rulings for abuse of discretion and will reverse only if “no reasonable person could take the view adopted by the trial court.” United States v. Causey, 748 F.3d 310, 315-16 (7th Cir. 2014) (internal marks omitted). Under Rule 404(b), evidence of a crime, wrong, or other act is not admissible to prove a person’s character or propensity to act a certain way. Fed. R. Evid. 404(b)(1). Such evidence may be admissible, however, for another purpose, such as proving motive, opportunity, or intent. Fed. R. Evid. 404(b)(2). Under Rule 403, the district court is allowed to exclude evidence whose probative value is substantially outweighed by a danger of unfair prejudice. Fed. R. Evid. 403. Evidence is unfairly prejudicial “only if it will induce the jury to decide the case on an improper basis, commonly an emotional one, rather than on the evidence presented.” United States v. Bogan, 267 F.3d 614, 623 (7th Cir. 2001) (internal marks omitted). We give “special deference” to the district court’s admission of evidence under Rule 403. United States v. LeShore, 543 F.3d 935, 939 (7th Cir. 2008) (internal marks omitted).

A. Testimony that Davies said he had sued before

Davies argues that the responding officers’ testimony that he told them he had “sued before” was inadmissible under Rule 404(b) because it constituted other-act evidence that was used to tarnish his character. He also argues that the testimony should have been excluded under Rule 403 because it resulted in severe prejudice with no corresponding probative value. Neither argument has merit.

First, Rule 404(b) does not apply here because the challenged testimony is not other-act evidence that was used to prove Davies’ character. The responding officers testified only that Davies said he had sued before, not that he did sue before. In doing so, the officers simply related what was said and done in the critical moments surrounding Officer Benbenek’s alleged use of excessive force. Davies’ words and actions at that time are central to the disputed circumstances underlying his claim of excessive force; they are not “other acts” used to establish a propensity inference in violation -of Rule 404(b). See Agushi v. Duerr, 196 F.3d 754, 761 (7th Cir. 1999) (party’s statement made days before alleged use of excessive force was nonetheless “part and parcel of the case at hand and thus [] not covered by Rule 404(b)”).

Davies has not made the required showing under Rule 403 either. Davies’ comments to the responding officers are highly probative in evaluating the disputed encounter with Officer Benbenek that lies at the heart of his claim for excessive force. On the other side of the scale, there is nothing “inherently emotional or incendiary” about the officers’ testimony that Davies said he had previously sued, see United States v. Strong, 485 F.3d 985, 991 (7th Cir. 2007), nor has Davies explained how the testimony would otherwise induce a jury to decide the case on an improper basis. Accordingly, the district court did not abuse its discretion in concluding that the probative value of this testimony was not substantially outweighed by the danger of unfair prejudice.

B. Testimony that certain items were found by the police

Davies next argues that the district court erred by permitting the police to testify that they found certain items in his home, and that he became increasingly frantic when they refused his request to hold his nephew accountable for the items. We reject Davies’ argument that this testimony should have been excluded under Rules 404(b) and 403.

Once again, the challenged testimony is not evidence of other acts within the parameters of Rule 404(b). The testimony centers on Davies’ interactions with the responding officers just before his contested exchange with Officer Benbenek. Because Davies’ remarks to the police at that time are an integral part of the facts and circumstances forming the basis of his case, Rule 404(b) does not apply. See Agushi, 196 F.3d at 761.

Turning to Rule 403’s balancing test, the items-testimony was clearly relevant to the pivotal question of how Davies ultimately ended up on the floor (Davies’ escalating agitation when confronted with the items makes it more likely that he threw himself from his wheelchair in the heat of the moment), while any resulting prejudice was mitigated by the fact that the items were not described to the jury in any way. The district court did not abuse its broad discretion in admitting this testimony at trial.

III. CONCLUSION

The district court’s evidentiary rulings were not an abuse of discretion. The challenged testimony was not impermissible character evidence under Rule 404(b), nor was it unduly prejudicial under Rule 403. Finding no error, we do not address Officer Benbenek’s alternative argument that any error was harmless.

AFFIRMED.

      . Davies has been a paraplegic since 1992.

      . The responding officers also testified at trial that Davies told them he had ''won” an earlier lawsuit and "made money” that way, but the district court struck that testimony on grounds that it referenced the result of Davies' alleged earlier litigation.

      . Even if the testimony that Davies said he had sued before were construed as other-act evidence, it still would not run afoul of Rule 404(b), since there is no indication that it was used for an improper propensity inference. Davies asserts that the testimony was used to show that he had a propensity to file frivolous lawsuits. But the mere suggestion that Davies may have "sued before” says nothing about the merits of the supposed earlier litigation; in recounting Davies’ remarks at the scene, the officers did not attest that Davies had filed any previous lawsuits at all, let alone frivolous ones.

      . Davies argues that he was further prejudiced by the officers’ testimony that he said he had won an earlier lawsuit and made money that way, but that testimony was stricken, and in any event the suggestion that Davies had previously filed a successful lawsuit is hardly prejudicial.


author: PER CURIAM MELLOY, Circuit Judge,

text:
    Norris G. HOLDER, Petitioner, v. UNITED STATES of America, Respondent.
    No: 16-2207
    United States Court of Appeals, Eighth Circuit.
    Date Filed: 07/26/2016
    Rehearing En Banc Denied September 13, 2016

      Scott Braden, Federal Public Defender’s Office, Little Rock, AR, Madeline S. Cohen, Boulder, CO, for Petitioner.
    Norris G. Holder, Terre Haute, IN, Pro Se.
    Allison Hart Behrens, Joseph M. Lan-dolt, Cristian Matthew Stevens, Eastern District of Missouri, Saint Louis, MO, for Respondent.
    Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges.

       Judge Kelly would grant the petition for rehearing en banc. Judge Gruender did not participate in the consideration or decision of this matter.

   JUDGMENT

PER CURIAM

Norris G. Holder’s motion for authorization to file a second or successive motion under 28 U.S.C. § 2255 based on Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and Welch v. United States, — U.S. —, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), has been considered by the court and is denied, because bank robbery in violation of 18 U.S.C. § 2113(a) and (e) is a “crime of violence” under 18 U.S.C. § 924(c)(3)(A). See United States v. Boman, 810 F.3d 534, 543 (8th Cir. 2016) (holding that the crime of federal robbery under 18 U.S.C. § 2111, which must be committed “by force and violence, or by intimidation,” “ha[s] as an element the ‘attempted use, or threatened use of physical force against the person of another’ ”); In re Hines, 824 F.3d 1334, 1336-37 (11th Cir.2016) (“[A] conviction for armed bank robbery clearly meets the requirement ... to include as an element, ‘the use, attempted use, or threatened use of physical force against the person or property of another.”); United States v. McNeal, 818 F.3d 141, 152-53 (4th Cir. 2016) (holding that “armed bank robbery is unquestionably a crime of violence, because it ‘has as an element the use, attempted use, or threatened use of physical force,’ ” and observing that “[o]ur sister circuits have uniformly ruled that other federal crimes involving takings ‘by force and violence, or by intimidation,’ have as an element the use, attempted use, or threatened use of physical force.”).

MELLOY, Circuit Judge,

Dissenting.

I would grant the application to file a successive habeas motion under 28 U.S.C. § 2255 because Holder has presented an argument of sufficient merit to clear the low bar for obtaining permission to file such a motion. See Woods v. United States, 805 F.3d 1152, 1153 (8th Cir. 2015) (per curiam) (“A prima facie showing is ‘simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.’ ” (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997))); see also, In re Hubbard, Movant, 825 F.3d 225 (4th Cir.2016) (noting that, “while determining whether to authorize a successive petition” a court’s analysis of the merits should be limited to a “cursory glance”).

Regarding the potential applicability of Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and Welch v. United States, — U.S. —, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), to 18 U.S.C. § 924(c)(8)(B), a circuit split has developed in which the majority of circuits to have spoken conclude Johnson applies to § 924(c)(3)(B), applies to the identical language of 18 U.S.C. § 16(b), or, at a minimum, successive habeas motions should be allowed as to this issue. See In re Hubbard, Movant, 825 F.3d 225 (4th Cir.2016) (granting permission to file a successive habeas motion because the mov-ant made a prima facie showing that Johnson may invalidate 8 U.S.C. § 16(b)); In re Pinder, Petitioner, 824 F.3d 977 (11th Cir. 2016) (granting permission to file a successive habeas motion because the movant made a prima facie showing that Johnson may invalidate 18 U.S.C. § 924(c)(3)(B)); In re Encinias, 821 F.3d 1224, 1226 (10th Cir.2016) (granting permission for a successive habeas to proceed as to the possible application of Johnson to U.S.S.G. § 4B1.2(a)(2)); United States v. Gonzalez-Longoria, 813 F.3d 225, 235 (5th Cir.2016) (en banc review currently pending) (holding in a direct appeal that 18 U.S.C. § 16(b) is unconstitutionally vague in light of Johnson); Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015) (holding in the context of an immigration proceeding that 18 U.S.C. § 16(b) is unconstitutionally vague in light of Johnson); United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015) (holding in a direct appeal that 18 U.S.C. § 16(b) is unconstitutionally vague in light of Johnson). The Sixth Circuit has held Johnson does not apply to § 924(c)(3)(B), United States v. Taylor, 814 F.3d 340 (6th Cir. 2016), and the Fifth Circuit has denied permission to file a successive motion seeking to apply Johnson to § 924(c)(3)(B), In re Fields, 826 F.3d 785 (5th Cir.2016).

Regarding the applicability of the “force” clause of 18 U.S.C. § 924(c)(3)(A), to Holder’s bank robbery conviction, I believe, again, there exists a question that merits further examination at the district court. Notwithstanding the egregious facts of his offense, Holder was not convicted of armed bank robbery, 18 U.S.C. § 2113(d). Rather he was convicted of bank robbery pursuant to § 2113(a) (1994) and § 2113(e) (1994). Our circuit has held the mens rea for the federal bank robbery offense, § 2113(a) does not attach to the use of violence or intimidation. See United States v. Pickar, 616 F.3d 821, 825 (8th Cir. 2010) (finding that the. federal bank robbery statute does not require a knowing or intentional mens rea in association with the use of force or intimidation); United States v. Yockel, 320 F.3d 818, 824 (8th Cir. 2003) (“The district court correctly concluded the mens rea element of bank robbery did not apply to the element of intimidation[.]”). Pursuant to Leocal v. Ashcroft, 543 U.S. 1, 9, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), “[t]he key phrase ... the ‘use ... of physical force against the person or property of another’ — most naturally suggests a higher degree of intent than negligent or merely accidental conduct.” (quoting 18 U.S.C. § 16(b)). To the extent United States v. Boman, 810 F.3d 534, 542-43 (8th Cir. 2016), reaches a different conclusion as to the general federal robbery statute, 18 U.S.C. § 2111, Boman did not expressly examine the mens rea attachéd to the intimidation element of the offense.

While it is not at this point clear how the combined offense of § 2113(a) and (e) might be committed in a manner not involving actual violence or not involving knowing or intentional intimidation, I do not view our role in approving or denying applications to file successive § 2255 motions to require resolution of such questions. We should not err on the side of cutting off argument; we should allow such motions to proceed where there is “a sufficient showing of possible merit to warrant a fuller exploration by the district court.” Woods, 805 F.3d at 1153.

      . Although the Fifth .Circuit reached this holding as to § 16(b) in a direct appeal case, the same circuit refused to permit a successive habeas seeking to apply Johnson to U.S.S.G. § 4B1.2(a)(2), In re Arnick, 826 F.3d 787 (5th Cir.2016), or to § 924(c)(3)(B), In re Fields, 826 F.3d 785.

      . Although In re Encinias is a Guidelines case rather than a § 16(b) or § 924(c) case, it demonstrates the Tenth Circuit’s willingness to allow a successive habeas to proceed in relation to a possible extension of Johnson.


author: MELLOY, Circuit Judge,

text:
    Billie Jerome ALLEN, Petitioner, v. UNITED STATES of America, Respondent.
    No: 16-2094
    United States Court of Appeals, Eighth Circuit.
    July 26, 2016
    Billie Jerome Allen, Terre Haute, IN, Pro Se.
    Timothy P. Kane, Eric John Montroy, Federal Community Defender Office, Philadelphia, PA, for Petitioner.
    Carrie Costantin, Joseph M. Landolt, U.S. Attorney’s Office, Saint Louis, MO, for Respondent.
    Before WOLLMAN, MELLOY and COLLOTON, Circuit Judges.
   JUDGMENT

Billie Jerome Allen’s motion for authorization to file a second or successive motion under 28 U.S.C. § 2255 based on Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and Welch v. United States, — U.S. —, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), has been considered by the court and is denied, because bank robbery in violation of 18 U.S.C. § 2113(a) and (e) is a “crime of violence” under 18 U.S.C. § 924(c)(3)(A). See United States v. Boman, 810 F.3d 534, 543 (8th Cir. 2016) (holding that the crime of federal robbery under 18 U.S.C. § 2111, which must be committed “by force and violence, or by intimidation,” “ha[s] as an element the ‘attempted use, or threatened use of physical force against the person of another’ ”); In re Hines, 824 F.3d 1334,

1337 (11th Cir.2016) (“[A] conviction for armed bank robbery clearly meets the requirement ... to include as an element, ‘the use, attempted use, or threatened use of physical force against the person or property of another.”); United States v. McNeal, 818 F.3d 141, 152-53 (4th Cir. 2016) (holding that “armed bank robbery is unquestionably a crime of violence, because it ‘has as an element the use, attempted use, or threatened use of physical force,’ ” and observing that “[o]ur sister circuits have uniformly ruled that other federal crimes involving takings ‘by force and violence, or by intimidation,’ have as an element the use, attempted 'use, or threatened use of physical force.”).

MELLOY, Circuit Judge,

Dissenting.

I would grant the application to file a successive habeas motion under 28 U.S.C. § 2255 because Allen has presented an argument of sufficient merit to clear the low bar for obtaining permission to file such a motion. See Woods v. United States, 805 F.3d 1152, 1153 (8th Cir. 2015) (per curiam) (“A prima facie showing is ‘simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.’ ” (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir.1997)); see also, In re Hubbard, Movant, 825 F.3d 225 (4th Cir.2016) (noting that, “while determining whether to authorize a successive petition” a court’s analysis of the merits should be limited to a “cursory glance”).

Regarding the potential applicability of Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and Welch v. United States, — U.S. —, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), to 18 U.S.C. § 924(c)(3)(B), a circuit split has developed in which the majority of circuits to have spoken conclude Johnson applies to § 924(c)(3)(B), applies to the identical language of 18 U.S.C. § 16(b), or, at a minimum, successive habeas motions should be allowed as to this issue. See In re Hubbard, Movant, 825 F.3d 225 (4th Cir.2016) (granting permission to file a successive habeas motion because the mov-ant made a prima facie showing that Johnson may invalidate 8 U.S.C. § 16(b)); In re Pinder, Petitioner, 824 F.3d 977 (11th Cir., 2016) (granting permission to file a successive habeas motion because the movant made a prima facie showing that Johnson may invalidate 18 U.S.C. § 924(c)(3)(B)); In re Encinias, 821 F.3d 1224, 1226 (10th Cir.2016) (granting permission for a successive habeas to proceed as to the possible application of Johnson to U.S.S.G. § 4B1.2(a)(2)); United States v. Gonzalez-Longoria, 813 F.3d 225, 235 (5th Cir.2016) (en banc review currently pending) (holding in a direct appeal that 18 U.S.C. § 16(b) is unconstitutionally vague in light of Johnson); Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015) (holding in the context of an immigration proceeding that 18 U.S.C. § 16(b) is unconstitutionally vague in light of Johnson); United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015) (holding in a direct appeal that 18 U.S.C. § 16(b) is unconstitutionally vague in light of Johnson). The Sixth Circuit has held Johnson does riot apply to § 924(c)(3)(B), United States v. Taylor, 814 F.3d 340 (6th Cir. 2016), and the Fifth Circuit has denied permission to file a successive motion seeking to apply Johnson to § 924(c)(3)(B), In re Fields, 826 F.3d 785 (5th Cir.2016).

Regarding the applicability of the “force” clause of 18 U.S.C. § 924(c)(3)(A), to Allen’s bank robbery conviction, I believe, again, there exists a question that merits further examination at the district court. Notwithstanding the egregious facts of his offense, Allen was not convicted of armed bank robbery, 18 U.S.C. § 2113(d), Rather’ he was convicted of bank robbery pursuant to § 2113(a) (1994) and § 2113(e) (1994). Our circuit has held the mens rea for the federal bank robbery offense, § 2113(a) does not attach to the use of violence or intimidation. See United States v. Pickar, 616 F.3d 821, 825 (8th Cir. 2010) (finding that the federal bank robbery statute does not require a knowing or intentional mens rea in association with the use of force or intimidation); United States v. Yockel, 320 F.3d 818, 824 (8th Cir. 2003) (“The district court correctly concluded the mens rea element of bank robbery did not apply to the element of intimidation[.]”). Pursuant to Leocal v. Ashcroft, 543 U.S. 1, 9, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), “[t]he key phrase ... the ‘use ... of physical force against the person or property of another’ — most naturally suggests a higher degree of intent than negligent or merely accidental conduct.” (quoting 18 U.S.C. § 16(b))). To the extent United States v. Boman, 810 F.3d 534, 542-43 (8th Cir. 2016), reaches a different conclusion as to the general federal robbery statute, 18 U.S.C. § 2111, Boman did not expressly examine the mens rea attached to the intimidation element of the offense.

While it is not at this point clear how the combined offense of § 2113(a) and (e) might be committed in a manner not involving actual violence or not involving knowing or intentional intimidation, I do not view our role in approving or denying applications to file successive § 2255 motions to require resolution of such questions. We should not err on the side of cutting off argument; we should allow such motions to proceed where there is “a sufficient showing of possible merit to warrant a fuller exploration by the district court.” Woods, 805 F.3d at 1153.

      . Although the Fifth Circuit reached this holding as to § 16(b) in a direct appeal case, the same circuit refused to permit a successive habeas seeking to apply Johnson to U.S.S.G. § 4B1.2(a)(2), In re Arnick, 826 F.3d 787 (5th Cir.2016), or to § 924(c)(3)(B), In re Fields, 826 F.3d 785.

      . Although In re Encinias is a Guidelines case rather than a § 16(b) or § 924(c) case, it demonstrates the Tenth Circuit’s willingness to allow a successive habeas to proceed in relation to a possible extension of Johnson.


author: LOKEN, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Edward JONES, Defendant-Appellant.
    No. 15-2795
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 11, 2016
    Filed: September 2, 2016

      Counsel who represented the appellant was John Jay Rausch, Waterloo, IA.
    Counsel who represented the appellee was Patrick J. Reinert, AUSA, Cedar Rapids, IA.
    Before LOKEN, BEAM, and SMITH, Circuit Judges.
   LOKEN, Circuit Judge.

Edward Jones appeals the district court’s denial of an 18 U.S.C. § 3582(c)(2) sentence reduction based upon Sentencing Guidelines Amendment 782, which in most cases retroactively reduced the drug quantity determination by two base offense levels. See United States v. Thomas, 775 F.3d 982, 982-83 (8th Cir. 2014); U.S.S.G. § 1B1.10(d) and (e)(1).

On January 28, 2014, Jones pleaded guilty to one count of conspiracy to distribute cocaine and crack cocaine in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846. At sentencing, the district court determined that his total offense level was 29 and his criminal history category was V, resulting in an advisory guidelines range of 140 to 175 months in prison. Jones and the gov-emment sought a two-level downward variance in anticipation of the proposed Amendment 782. The court denied a variance because the Amendment was not yet the law and imposed a 140-month sentence, explaining:

Even if the guideline reduction were to go through ... I think the [offense level] would be 27, criminal history V, which I read as [a range of] 120 to 150 months. Correct?
[AUSA] LIGHTFOOT: Yes, Your Honor.
THE COURT: So there is considerable overlap. After I analyzed this case using the 3553(a) factors, I determined the sentence that is sufficient but not greater than necessary to achieve the goals of sentencing is a 140-month sentence. This would be my sentence even if [Amendment 782 is] adopted by Congress and there’s a retroactive imposition of this 2-level reduction. It wouldn’t change [the sentence] at all.... And the reasons are pretty much as stated by Mr. Lightfoot. We’ve got uncharged criminal conduct.... [A]t a minimum we have felon in possession, and that wasn’t taken into account.... [I]f he’s trafficking in firearms off the street, might even be a different charge than felon in possession. ... The quantity of drugs. The very concerning conduct that he engaged in after he fled the jurisdiction; he basically set himself up to continue to deal dope in Chicago.... Lastly, his lack of respect for the law.

In July 2015, acting on a report from the probation office, the district court issued an Order stating that Jones “is eligible for a sentence reduction” under § 3582(c)(2) and U.S.S.G. § 1B1.10 because Amendment 782 was now in effect and would reduce his amended guidelines range to 120 to 150 months in prison. However, the district court denied a reduction, explaining:

[H]aving reviewed the defendant’s file, the provisions and commentary of USSG § 1B1.10, the factors set forth in 18 U.S.C. § 3553(a), the nature and seriousness of. the danger to any person or community that may be posed by a reduction in the defendant’s term of imprisonment and the defendant’s post-sentencing conduct, the .court deems it appropriate to exercise its discretion and to deny the defendant a reduction that is permitted under 18 U.S.C. § 3582(c)(2) and USSG § 1B1.10. During the sentencing hearing, the court made clear that any reduction related to Amendment 782 (subject to subsection (e)(1)) would not be warranted in light of aggravating factors, including but not limited to the uncharged criminal conduct, the amount of drugs and the lack of respect for the law. The court stands by its prior determination.

On appeal, Jones argues that the Supreme Court’s decision in Dillon v. United States, 560 U.S. 817, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010), “mandates” that a defendant eligible for a sentence reduction under § 3582(c)(2) and § 1B1.10 is “entitled to the sentence as if the amendment was allowed at the time of [initial] sentencing.” We disagree. In Dillon, the Court explained that, when a defendant is eligible for a reduction, “§ 3582(c)(2) instructs a court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized ... is warranted in whole or in part under the particular circumstances of the case.” Id. at 827, 130 S.Ct. 2683. In other words, as we have often stated, “§ 3582 does not entitle a defendant to a sentencing reduction.” United States v. Van Osten, 639 Fed.Appx. 393, 394 (8th Cir. 2016).

Alternatively, Jones argues that it “should be considered abuse of discretion” when the district court initially sentences a defendant at the low end of the guidelines range and then maintains the same sentence after a two-level retroactive guidelines amendment. Though there is surface logic to this contention, it misconstrues the nature of a district court’s sentencing discretion. There is nothing illogical about a district court concluding that the broadly stated § 3553(a) sentencing factors lead to imposition of the same sentence, even if one of the complex advisory guidelines determinants, here, drug quantity, has been amended. The district court fully explained its reasons for reaching that conclusion in this case, both before and after Amendment 782 became effective. Both times, the court examined all the § 3553(a) factors, including drug quantity and various legitimate aggravating factors. It concluded that a 140-month sentence was “sufficient but not greater than necessary to achieve the goals of sentencing.” There was no abuse of discretion. Cf. United States v. Hernandez-Marfil, 825 F.3d 410, 411-413 (8th Cir. 2016) (anticipating Amendment 782, district court granted 7-month variance from bottom of range at initial sentencing; no abuse of discretion to deny further reduction to bottom of amended range when Amendment 782 became effective).

Finally, Jones argues the district court abused its discretion by basing its decision in part on his post-sentence conduct because the probation office’s report did not include any such information. This contention is without merit. It is the defendant’s burden to establish that he warrants a § 3582(c)(2) reduction. The district court may consider post-sentencing rehabilitation as warranting a reduction, so the record often includes evidence of positive post-sentence conduct. Thus, the district court may also consider the lack of positive post-sentence information in denying a reduction.

The Order of the district court dated July 21, 2015, denying Jones a § 3582(c)(2) sentence reduction, is affirmed.,

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


author: BENTON, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ismael MIRANDA-ZARCO, Defendant-Appellant.
    No. 15-1497
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 11, 2016
    Filed: September 6, 2016

      Counsel who represented the appellant was Kristy Lynn Ridings, Saint Louis, MO.
    Counsel who represented the appellee was Jeanette S. Graviss, AUSA, Saint Louis, MO.
    Before MURPHY, SMITH, and BENTON, Circuit Judges.
   BENTON, Circuit Judge.

Ismael Miranda-Zarco pled guilty to two conspiracies: to distribute methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A); and to commit money laundering in violation of 18 U.S.C. § 1956 (a)(1)(B)(I) and (h). He appeals the addition of one criminal-history point under U.S.S.G. § 4A1.1. Having jurisdiction under 28 U.S.C. § 1291, this court vacates the sentence and remands.

In 2001, for the same act, Miranda-Zarco pled guilty to first-degree robbery and armed criminal action (ACA). See § 569.020 RSMo (robbery in the first degree); § 571.015 RSMo (ACA). “According to court records” he, “acting with another, forcibly stole U.S. currency in the possession of Pizza-Hut-DeSoto, and in the course thereof defendant, acting with another, displayed what appeared to be a deadly weapon.” He received 10 years in prison for the robbery, and a concurrent three years for the ACA.

I.

The district court added three criminal-history points for the robbery conviction under § 4A1.1(a), as authorized for a prior sentence of imprisonment exceeding one year and one month. Guideline 4A. 1.1(e) then says to “add 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a), (b), or (c) above because such sentence was treated as a single sentence.... ” Accordingly, for the ACA conviction, the court added one point. Miranda-Zarco objects to the ACA point, claiming because the ACA arose out of the same conduct as the burglary, it cannot be counted separately.

By state law, the ACA conviction is separate and distinct from the robbery conviction. In Missouri, first-degree robbery occurs when a person

forcibly steals property and in the course thereof he, or another participant in the crime,
(1) Causes serious physical injury to any person; or
(2) Is armed with a deadly weapon; or
(3) Uses or threatens the immediate use of a dangerous instrument against any person; or
(4) Displays or threatens the use of what appears to be a deadly weapon or dangerous instrument.

§ 569.020 RSMo. An ACA violation occurs when a person commits any felony “by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon....” § 571.015 RSMo. An ACA punishment is “in addition to” the punishment for the underlying felony. Id. The Supreme Court of Missouri has held that robbery and armed criminal action “are not the same offense” for purposes of multiple prosecution because “the expressed intent of the legislature” is to punish the offenses cumulatively. State v. Flenoy, 968 S.W.2d 141, 144-45 (Mo. banc 1998), citing Missouri v. Hunter, 459 U.S. 359, 367, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). The district court correctly rejected Miranda-Zar-co’s claim. See United States v. Watson, 650 F.3d 1084, 1091-92 (8th Cir. 2011) (affirming, under similar Oklahoma law, district court’s application of one point under § 4A1.1(e)).

II.

Miranda-Zarco submitted a pro se supplemental brief arguing, among other things, that the district court incorrectly added the additional point because his ACA conviction is not a “crime of violence.” The Clerk initially denied his motion to file the pro se supplemental brief. See U.S. Ct. of App. 8th Cir. Rule 27A(a).

Miranda-Zarco asks this court to reconsider the Order. Normally, this court does not address arguments in pro se filings when the defendant is represented by counsel. Cf. U.S. Ct. of App. 8th Cir., Internal Operating Procedures, III.I.2 (banning all supplemental brief “without leave of the court”). Nevertheless, this court has discretion to review pro se supplemental briefs. See, e.g., United States v. Scales, 735 F.3d 1048, 1052-53 (8th Cir. 2013) (“[W]e will consider the five issues raised by Scales in his pro se brief.”); United States v. Benson, 686 F.3d 498, 505 (8th Cir. 2012) (granting motion to file pro se supplemental brief although defendant was represented by counsel, and finding arguments meritless); United States v. Blum, 65 F.3d 1436, 1443 n.2 (8th Cir. 1995) (despite general “Eighth Circuit policy” against considering pro se filings when a party is represented by counsel, this court “gratuitously examined” defendant’s pro se filings, finding “they set forth no material of arguable merit”); United States v. Halverson, 973 F.2d 1415, 1417 (8th Cir. 1992) (reviewing arguments raised by pro se supplemental brief, and finding them without merit); United States v. Payton, 918 F.2d 54, 56 n.2 (8th Cir. 1990) (“While our Eighth Circuit policy provides that when a party is represented by counsel we will not accept pro se briefs for filing, ... we granted leave to appellant to file a brief not to exceed five pages.”). Having reviewed Miranda-Zar-co’s pro se supplemental brief (and the government’s response), this court authorizes the filing of the supplemental brief on the issue whether his ACA conviction is a “crime of violence.”

Because this argument was not raised in the district court, this court reviews for plain error. United States v. Ault, 598 F.3d 1039, 1042 (8th Cir: 2010). To prevail, he must show that there is “ ‘(1) error, (2) that is plain, and (3) that affects substantial rights. If all three of those conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” Id., citing Johnson v. United States, 520 U.S. 461, 462, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

At sentencing on February 25, 2015, the guidelines provided that a “crime of violence” was any offense punishable by over one year’s imprisonment that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B 1.2(a). The case of Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015) — argued almost four months before Miranda-Zarco’s sentencing — invalidated the identically worded “residual clause” in the federal statute, 18 U.S.C. § 924(e)(2)(B)(ii). According to the government, this court need not consider whether the “residual clause” in the then § 4B1.2 (a)(2) was unconstitutional. The government believes that an ACA conviction has as. an element “the use, attempted use, or threatened use of physical force against the person of another.”

The record does -not indicate whether the district court relied on the residual clause or the force clause to determine that Miranda-Zarco’s ACA offense was a crime of violence under § 4A1.1(e). If the district court used the residual clause, “our precedent would foreclose [his] argument because we have held that a district court does not commit plain error in holding that a defendant’s prior felonies constitute crimes of violence under the Guidelines’s residual clause.” United States v. Robinson, 826 F.3d 1044, 1045 (8th Cir.2016).

Miranda-Zarco might, however, be entitled to plain error relief if the district court incorrectly found his ACA conviction was a crime of violence under § 4B1.2(a)(1). See id. at 1045-46, citing Molina-Martinez v. United States, — U.S. —, 136 S.Ct. 1338, 1345, 194 L.Ed.2d 444 (2016). The government claims that using a dangerous instrument or a deadly weapon during the commission of a felony is “clearly” a crime of violence under § 4B1.2(a)(1). However, it is not readily apparent whether committing a felony “by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon” necessarily has as an element the use, attempted use, or threatened use of physical force against the person of another. This court lacks full briefing and an adequate record to address this issue. On remand, this court assumes the parties will “assist in gathering whatever state court records are available so the district court can make a proper determination under the categorical or modified categorical approach, whichever the court concludes is more appropriate.” See United States v. Fields, 832 F.3d 831, 837, 2016 WL 4191179, at *4 (8th Cir. Aug. 9, 2016).

* * * * * * *

The sentence is vacated, and the case remanded for additional sentencing proceedings.

      . See In re Riverside-Linden Inv. Co., 945 F.2d 320, 324 (9th Cir. 1991) (“We have discretion to review an issue not raised by appellant, however, when it is raised in the appel-lee’s brief.”).

      . Guideline 4B1.2 has since been amended, effective August 1, 2016.