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The Honorable Henry E. Autrey, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2671

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Missouri.

Kelly L. Phelps, *

*

Appellant. *

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Submitted: March 12, 2008

Filed: August 5, 2008

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Before MURPHY, ARNOLD, and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

Kelly Lee Phelps pled guilty to possession of pseudoephedrine with intent to

manufacture methamphetamine, 21 U.S.C. § 841(a)(1). The district court1

 sentenced

him to 84 months’ imprisonment (before credit for 6 months served). Phelps appeals,

asserting sentencing errors. Having jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742, this court affirms.
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I.

At sentencing, the district court first reviewed the presentence report. Phelps

objected to the three criminal history points assessed for his state conviction for

possession of anhydrous ammonia (under U.S.S.G. § 4A1.1). The court overruled the

objection, and adopted the report, finding Phelps’s total offense level as 23 and

criminal history category as V, resulting in a range of 84 to 105 months.

Phelps asked for a below-guidelines sentence. His counsel requested departures

based on over-representation of criminal history and extraordinary family

circumstances. Phelps’s infant son, Keaton, was born with severe brain damage,

requiring constant care. Phelps argued that his presence was important to provide care

and money. He also urged a reduction based on the 18 U.S.C. § 3553 factors, noting

his troubled childhood, desire for addiction treatment, acceptance of responsibility,

and low risk of recidivism. The government did not dispute the facts of Phelps’s

childhood or Keaton’s health, but urged a substantial period of incarceration, citing

the severity of Phelps’s addiction. Phelps then addressed the court, expressing

remorse and desire for treatment. The court questioned Phelps and counsel, concerned

whether he would actually benefit Keaton or beat his addiction. 

The court acknowledged the unfortunate circumstances of Keaton’s health and

Phelps’s childhood, concluding, “The first time you started using meth was the road

to the abandonment of those who cared the most about you as well as the

abandonment of yourself.” The court told Phelps, “You kind of did [throw in the

towel], and now, now, what you look for from the Court is some type of lifeline, some

type of lifeline to pull you out of this smoldering, bubbling, boiling soup that you have

gotten yourself into. Those lifelines don’t come around that often, Mr. Phelps. They

are not that easy to throw out there.” The court reiterated its concern whether Phelps

would benefit his family or resume his addiction. The court stated:

[W]hat happens for this child who requires so very much attention that

things just get so tense, so highly emotionally charged that you just can’t
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take it anymore? If you walked out of this courtroom right now or you

walked out of a cell in February and you were there for a month, two

months, or three months, assuming you were able to get a job and get

your business back up together that you kind of blew because of the

meth, what would happen? Would that be a benefit for Keaton? Would

Keaton have the same services available to him then that he has now?

The other question is, Who is this really for? Is it for you? Is it for

Keaton? Is it for your fiance? Is it for society? 

The court concluded its reasoning by stating:

I frankly am not convinced that, A, your criminal history should be

reduced, or B, and it may be more importantly B, that considerations

under 3553 are sufficient enough to warrant factually my in essence

giving you a break. Once you cut through all the legal stuff, it means

giving you a break, okay, for your particular circumstances, you know,

because that language talks about sufficient but not greater than

necessary to achieve the ends, and ultimately the bottom line as we talk

about sentencing, what are the goals of sentencing in relation to you, in

relation to society, in relation to your family and the needs of your

family because it is the needs of your family which is really at the heart

of your attorney’s request, and I am just not convinced that doing

anything less than the presumed guideline provision would do anything

for them let alone to society or ultimately for you.

The court sentenced Phelps to 84 months’ imprisonment, followed by two years’

supervised release. Phelps’s counsel requested credit, under U.S.S.G. § 5G1.3(c), for

the 6 months Phelps had already served. The court granted this request, reducing the

sentence to 78 months. Phelps appeals.

II.

Reviewing a sentence, this court first determines whether the district court

committed a significant procedural error, “such as 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,
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or failing to adequately explain the chosen sentence – including an explanation for any

deviation from the Guidelines range.” Gall v. United States, 128 S. Ct. 586, 597

(2007). If a defendant fails to timely object to a procedural sentencing error, the error

is forfeited and may only be reviewed for plain error. See United States v. Pirani, 406

F.3d 543, 549 (8th Cir. 2005) (en banc); United States v. Alvizo-Trujillo, 521 F.3d

1015, 1018 (8th Cir. 2008). Under plain error review, the defendant must show: (1)

an error; (2) that is plain; and (3) that affects substantial rights. Johnson v. United

States, 520 U.S. 461, 466-67 (1997); Fed. R. Crim. P. 52(b). If these conditions are

met, an appellate court may exercise its discretion to correct a forfeited error only if

it “seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Johnson, 520 U.S. at 467, quoting United States v. Olano, 507 U.S.

725, 732 (1993). 

A.

Phelps asserts several procedural errors. First, that the district court applied a

presumption of reasonableness to the guidelines, in violation of Rita v. United States,

127 S. Ct. 2456 (2007). See Rita, 127 S. Ct. at 2465 (“[T]he sentencing court does not

enjoy the benefit of a legal presumption that the Guidelines sentence should apply.”).

Phelps did not object in the district court, so plain error review applies. Pirani, 406

F.3d at 549; Alvizo-Trujillo, 521 F.3d at 1018. Phelps highlights the following

statement by the district court: “I am just not convinced that doing anything less than

the presumed guideline provision would do anything for them let alone to society or

ultimately for you.” (emphasis added). Phelps argues that, because of an

impermissible presumption, the district court ignored the other § 3553(a) factors. He

relies on the following statement by the district court: “I frankly am not convinced that

. . . considerations under 3553 are sufficient enough to warrant factually my in essence

giving you a break.” (emphasis added). 

Sentencing occurred on June 29, 2007, more than a week after Rita. See Rita,

127 S. Ct. at 2456 (decided on June 21, 2007). “Trial judges are presumed to know

the law and to apply it in making their decisions.” Walton v. Arizona, 497 U.S. 639,
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653 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 609

(2002). The district court here is presumed to have known, at sentencing, that Rita

prohibited a presumption of reasonableness by sentencing courts. See United States

v. Gray, No. 07-2099, slip op. at 2 (8th Cir. July 18, 2008) (noting that Rita was not

an “obscure decision[] likely to have been overlooked by federal sentencing judges”).

The reference to “presumed guideline provision” is not sufficient to overcome this

presumption. See United States v. Sigala, 521 F.3d 849, 851 (8th Cir. 2008) (district

court did not apply a presumption of reasonableness when it stated: “To assist your

attorney and the government and me, for that matter, to determine what a reasonable

sentence is, we use the Federal Sentencing Guidelines.”); United States v. Robinson,

516 F.3d 716, 718 (8th Cir. 2008) (district court did not apply a presumption of

reasonableness by stating “that Robinson’s case was not ‘special’ enough to emerge

from the ‘primordial soup’ of initial sentencing considerations represented by the

Guidelines.”). Cf. Alvizo-Trujillo, 521 F.3d at 1017-18 (district court erred, without

prejudice, when it stated, “the guideline range is presumptively a reasonable range.”);

United States v. Vaughn, 519 F.3d 802, 805 (8th Cir. 2008) (district court erred,

without prejudice, by stating: “I cannot find . . . that the presumptively reasonable

guidelines in this case are not reasonable.”) (emphasis in original); United States v.

Burnette, 518 F.3d 942, 947-48 (8th Cir. 2008) (district court erred, without prejudice,

when it stated: “A sentence within the guidelines is presumed to be reasonable . . . .”);

United States v. Marston, 517 F.3d 996, 1005-06 (8th Cir. 2008) (district court erred,

without prejudice, by stating: “That’s where you start, is determine what the

guidelines are, and then start there, presuming that you’re in a reasonable area to

start with, and then determine if there’s a basis to go outside of it.”) (emphasis in

original). 

Phelps also maintains that the district court procedurally erred by not

adequately explaining its reasons for the sentence, in violation of § 3553(c). See 18

U.S.C. § 3553(c) (“The court, at the time of sentencing, shall state in open court the

reasons for its imposition of the particular sentence . . . .”). Again, he did not object

in the district court, so plain error review applies. See United States v. Guarino, 517

F.3d 1067, 1068 (8th Cir. 2008). When analyzing the § 3553(a) factors, the district
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court is not required to provide a full opinion in every case. Rita, 127 S. Ct. at 2468.

“The sentencing judge should set forth enough to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own

legal decisionmaking authority.” Id. “The appropriate length of the statement will

vary by case and may be relatively brief if the district court rests its decision on the

Sentencing Commission’s reasoning and ‘decides to apply the Guidelines to a

particular case.’” United States v. Roberson, 517 F.3d 990, 994 (8th Cir. 2008),

quoting Rita, 127 S. Ct. at 2468. “In making this determination, this court examines

the entire sentencing record, not just the district court’s statements at the hearing.”

Guarino, 517 F.3d at 1069. 

Phelps contends that the district court ignored his unique family circumstances,

disadvantaged childhood, desire for drug addiction treatment, favorable employment

history, remorse, potential success at rehabilitation, and low risk of recidivism. In

fact, the court listened to Phelps’s arguments supporting a non-guidelines sentence,

and discussed several § 3553(a) factors, including criminal history, family

circumstances, need for drug treatment, and risk of recidivism. The district court

found this was a typical case, and Phelps’s circumstances did not warrant a lower

sentence. The court concluded: “I frankly am not convinced that . . . considerations

under 3553 are sufficient enough to warrant factually my in essence giving you a

break.” The district court certainly considered Phelps’s arguments and had a reasoned

basis for its decision. See Sigala, 521 F.3d at 851 (statement of reasons was legally

sufficient where “the court listened to [the defendant’s] arguments, but simply found

the proffered circumstances insufficient to warrant a sentence lower than the advisory

sentence . . . .”); Burnette, 518 F.3d at 948-49 (district court adequately explained its

reasons for a guidelines sentence where it listened to all of the defendant’s arguments,

discussed several § 3553(a) factors, and ultimately concluded that the case was not

appropriate for a variance). The district court did not commit Rita error. 

Next, Phelps contends that the district court procedurally erred by considering

improper factors. See United States v. Pepper, 518 F.3d 949, 953 (8th Cir. 2008)

(consideration of improper factors is procedural error). Again, he did not object in the
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district court, so plain error review applies. See Burnette, 518 F.3d at 949. Phelps

first asserts that the district court improperly considered the nature of addiction and

the quality of assistance Phelps would actually provide Keaton. These considerations

directly relate to the history and characteristics of Phelps and the need to provide him

with treatment, which are § 3553(a) factors. See 18 U.S.C. § 3553(a)(1), (a)(2)(D).

Phelps also claims the district court improperly relied on an assumption that he

had waived his right to appeal a guidelines sentence. At the very end of the

sentencing hearing, after announcing its sentence, the court explained Phelps’s appeal

rights: “In any event, I think many aspects of your rights of appeal may have been

waived by virtue of your plea of guilty, but I do know for sure that you did reserve

those that might relate to ineffective assistance of counsel and prosecutorial

misconduct, okay?” This was not a factor in sentencing Phelps, as the sentence had

been announced. The district court did not consider improper factors.

The Gall mandate that a sentencing judge “make an individualized assessment

based on the facts presented” was satisfied here. See Gall, 128 S. Ct. at 597. The

sentencing transcript contains 27 pages of colloquy between Phelps, his counsel, the

government, and the district court. The court twice questioned Phelps personally

about his arguments and requests. Following this exchange, the transcript contains

5 pages of the court’s explanation of its sentence. The district court made an

individualized assessment, based on Phelps’s particular circumstances. No Gall error

occurred.

B.

Phelps asserts that the district court also procedurally erred by failing to rule on

two requested departures. He first requested a departure for overstatement of his

criminal history. See U.S.S.G. § 4A1.3(b)(1). The district court specifically rejected

this: “I frankly am not convinced that, A, your criminal history should be reduced . .

. .” Phelps also sought a departure for unique family circumstances. See U.S.S.G. §
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5H1.6. The district court rejected this request, when it stated that, “it is the needs of

your family which is really at the heart of your attorney’s request, and I am just not

convinced that doing anything less than the presumed guideline provision would do

anything for them let alone to society or ultimately for you.” The district court did not

fail to rule on the requested departures. Once it ruled, “a district court’s decision to

deny downward departures is unreviewable ‘unless the district court had an

unconstitutional motive or erroneously thought that it was without authority to grant

the departure[s].’” United States v. Montgomery, 525 F.3d 627, 629 (8th Cir. 2008),

quoting United States v. Johnson, 517 F.3d 1020, 1023 (8th Cir. 2008). As there is

no indication of either circumstance, the denial of Phelps’s requested departures is

unreviewable.

C.

Phelps appeals the district court’s calculation of his criminal history category,

contesting the inclusion of his state offense for possession of anhydrous ammonia as

a prior sentence. Under U.S.S.G. § 4A1.1, a defendant receives criminal history

points for each prior sentence. U.S.S.G. § 4A1.1. “The term ‘prior sentence’ means

any sentence previously imposed . . . for conduct not part of the instant offense.”

U.S.S.G. § 4A1.2(a)(1). If the conduct is part of the instant offense, it is instead

treated as relevant conduct and is considered in the calculation of the defendant’s

offense level, not criminal history category. See U.S.S.G. § 1B1.3(a); United States

v. Chibukhchyan, 491 F.3d 722, 725 (8th Cir. 2007). Relevant conduct includes “all

acts . . . that occurred during the commission of the offense of conviction, in

preparation for that offense, or in the course of attempting to avoid detection or

responsibility for that offense.” U.S.S.G. § 1B1.3(a)(1). In contrast, if the prior

criminal conduct is severable and distinct, it is not relevant conduct. See

Chibukhchyan, 491 F.3d at 725. “Factors useful in determining whether the two

offenses are severable and distinct are temporal and geographical proximity, common

victims, common scheme, charge in the indictment, and whether the prior conviction

is used to prove the instant offense.” United States v. Stone, 325 F.3d 1030, 1032

(8th Cir. 2003).
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Phelps was arrested for possession of anhydrous ammonia on June 4, 2005 (but

not sentenced until September 6, 2006). The federal offense occurred June 30, 2006.

The district court assessed three criminal history points under U.S.S.G. § 4A1.1 for

the state anhydrous-ammonia offense, finding it was a prior sentence, and not relevant

conduct. Phelps insists that the state offense was part of the same course of conduct

as the federal offense. He did object in the district court, so this court reviews “the

district court’s findings of fact for clear error and its interpretation and application of

the Guidelines de novo.” United States v. Starr, No. 07-2397, slip op. at 19-20 (8th

Cir. June 23, 2008). “Whether a conviction was relevant conduct involves a fact

intensive inquiry, an inquiry well within the district court’s sentencing expertise and

greater familiarity with the factual record.” Stone, 325 F.3d at 1031 (internal citation

and quotation marks omitted). 

The state and federal offenses are distinct and severable. The state offense did

not occur during the commission of the federal offense, in preparation for the federal

offense, or in the course of attempting to avoid detection for the federal offense. See

U.S.S.G. § 1B1.3(a)(1). In fact, the offenses were separated by more than one year.

See United States v. Davidson, 195 F.3d 402, 409 (8th Cir. 1999) (possession

convictions were not relevant conduct to a conspiracy offense where the acts were

separated by almost two months, and there was no common plan or victim). Cf.

United States v. Ault, 446 F.3d 821, 824 (8th Cir. 2006) (exchange of

pseudoephedrine pills for meth was related to charge of attempting to manufacture

meth because they occurred within a six-week period). The offenses were not charged

in the same indictment, and the state offense was not used to prove the federal offense.

Cf. United States v. Kenyon, 7 F.3d 783, 787 (8th Cir. 1993) (possession of cocaine

offense was part of conspiracy to possess with intent to distribute cocaine offense,

where both occurred during the same time period and the possession offense would

have been used as evidence of the conspiracy offense). The district court did not err

by including the state offense as a prior sentence.
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III.

Phelps argues that the sentence is substantively unreasonable. “In contrast to

procedural errors, a defendant does not forfeit an attack on the substantive

reasonableness of a sentence by failing to object in the district court.” Vaughn, 519

F.3d at 805. This court reviews the substantive reasonableness of a sentence for an

abuse of discretion. Gall, 128 S. Ct. at 597. “A sentence within the Guidelines range

is accorded a presumption of substantive reasonableness on appeal.” Robinson, 516

F.3d at 717. Phelps essentially reasserts the arguments made to the district court. The

district court considered Phelps’s arguments and found them unpersuasive. It did not

abuse its discretion in imposing a sentence at the bottom of the guidelines range.

IV.

The judgment of the district court is affirmed.

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