United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 20-3152

___________________________ 

United States of America

 Plaintiff - Appellee

v.

Marion Boone Wise, III

 Defendant - Appellant

____________

Appeal from United States District Court 

for the Western District of Arkansas - Fayetteville

____________ 

Submitted: September 21, 2021

Filed: November 5, 2021

____________ 

Before SHEPHERD, WOLLMAN, and KOBES, Circuit Judges. 

____________

SHEPHERD, Circuit Judge. 

Marion Boone Wise, III pled guilty to conspiracy to distribute more than 100 

grams of a mixture or substance containing heroin, in violation of 21 U.S.C. 

§§ 841(a)(1), (b)(1)(B)(i), and 846, and the district court1 sentenced Wise to 300 

1

The Honorable Timothy L. Brooks, United States District Judge for the 

Western District of Arkansas. 
-2- 

months imprisonment. Wise now appeals, and having jurisdiction pursuant to 28 

U.S.C. § 1291, we affirm.

I. 

For approximately a year, the Drug Enforcement Administration (DEA), with 

the assistance of local law enforcement agencies, investigated heroin distribution in 

Northwest Arkansas. Investigators identified Wise as a heroin distributor in the area 

and utilized a confidential source to purchase heroin from Wise on two occasions. 

This confidential source also purchased heroin from Wise’s co-conspirator and 

co-defendant Sherry Finn on four occasions. On July 17, 2019, the confidential 

source alerted DEA agents to a possible overdose victim at Finn’s residence. Agents 

responded to Finn’s residence and discovered a deceased male in her bedroom. An 

autopsy later revealed that the victim died from a heroin and methamphetamine 

overdose. Finn was arrested and, in a post-Miranda2

 interview, stated the victim 

used heroin that Finn had purchased from Wise. Finn further explained that when 

she purchased the heroin from Wise, he warned her that it was “strong stuff.” 

Also on July 17, agents executed a search warrant at Wise’s residence. Agents

seized 32.7 grams of “black tar” heroin, 26 grams of “China white” heroin, .8 grams 

of marijuana, 1.6 grams of methamphetamine, and $7,111 in cash. Agents also 

found two young children living there. During a post-Miranda interview with 

agents, Wise stated that he purchased heroin approximately every one to two days

and distributed that heroin to approximately eight individuals. Wise admitted to 

distributing heroin to all seven named co-conspirators, including Finn. Wise also 

told agents about an incident in which a woman visited his residence, purchased 

“China white” heroin, and after using that heroin, began seizing and lost 

consciousness. Although the woman ultimately regained consciousness, it was upon 

Wise’s advice that those at the residence chose not to call 911. This occurred on the 

same day as (and prior to) Finn’s heroin purchase from Wise—heroin that he warned 

2 Miranda v. Arizona, 384 U.S. 436 (1966).
-3- 

contained “strong stuff” and resulted in a death. Wise ultimately pled guilty to 

conspiracy to distribute more than 100 grams of a mixture or substance containing 

heroin. 

At sentencing and after applying a three-level reduction for acceptance of 

responsibility, the district court calculated Wise’s adjusted offense level as 31 and

applied a criminal history category of VI, resulting in a Guidelines range of 188 to 

235 months imprisonment. After analyzing the 18 U.S.C. § 3553(a) factors, the 

district court explained that the Guidelines range was inadequate and varied upward, 

sentencing Wise to 300 months imprisonment.3

 

 

II. 

On appeal, Wise contends both that his 300-month sentence is procedurally 

flawed (because the district court relied on clearly erroneous facts) and substantively 

unreasonable. “Our analysis is performed in two steps: ‘first, [we review] for 

significant procedural error; and if there is none, for substantive reasonableness.’” 

United States v. Clark, 998 F.3d 363, 367 (8th Cir. 2021) (alteration in original) 

(citation omitted). “‘Procedural error’ includes ‘failing to calculate (or improperly 

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to 

consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, 

or failing to adequately explain the chosen sentence—including an explanation for 

any deviation from the Guidelines range.’” United States v. Feemster, 572 F.3d 455, 

461 (8th Cir. 2009) (en banc) (citation omitted). At sentencing, Wise failed to object 

to the district court’s alleged procedural error, and we therefore apply a plain-error 

standard of review. See United States v. Brown, 992 F.3d 665, 672 (8th Cir. 2021). 

“Under plain error review, the defendant must show: (1) an error; (2) that is plain; 

and (3) that affects substantial rights.” Id. (citation omitted). 

3

The government moved for an upward departure pursuant to USSG § 5K2.1 

to reflect the overdose victim’s death. The district court declined to grant the 

government’s motion, instead acknowledging the victim’s death in its § 3553(a) 

analysis. 
-4- 

At sentencing, the district court mentioned that some of the heroin sold by 

Finn contained fentanyl and discussed the ever-present possibility that heroin can be 

laced with fentanyl. Wise highlights the district court’s brief discussion of fentanyl 

and argues that this discussion reflects the district court’s reliance on facts not in 

evidence. See Feemster, 572 F.3d at 461 (procedural error occurs where the district 

court “select[s] a sentence based on clearly erroneous facts”). We disagree. While 

Wise is correct that the government presented no evidence that the heroin he 

distributed contained fentanyl, the district court did not “select[ ] a sentence” based 

on the presence of fentanyl. Id. Instead, when read in the context of the entire 

sentencing hearing, it is clear the district court was merely highlighting heroin’s 

dangerous nature and Wise’s awareness of that dangerous nature, as exhibited in part

by the woman who seized and lost consciousness after using heroin purchased from 

Wise and Wise’s warning to Finn (after the woman lost consciousness) that the 

heroin he was distributing was “strong stuff.” Therefore, Wise fails to show that the 

district court erred. 

Even assuming the district court did procedurally err, any such error was 

harmless. “An error is harmless only if we are convinced that the error did not affect 

the district court’s sentencing conclusion.” United States v. Moody, 930 F.3d 991, 

993 (8th Cir. 2019) (citation omitted). It is the government’s burden to show that 

the sentence would have been the same despite the district court’s error. Id. Here, 

the government explained that the district court found a 300-month sentence 

appropriate not because it believed fentanyl was present but because heroin 

distributed by Wise led to someone’s death and Wise has an extensive criminal 

history, with approximately 1 conviction per year since he turned 21 years old. Wise 

argues only that the district court erred by considering the presence of fentanyl when 

choosing a sentence and does not explain if or why his sentence would be lower if 

the district court had not mentioned fentanyl. We can see nothing in the record to 

suggest that the district court did rely on fentanyl’s presence when selecting a 

sentence, and ultimately, we are convinced Wise’s sentence would have been the 

same even without the district court’s alleged error. See id.
-5- 

Finding no procedural error, we now consider the substantive reasonableness 

of Wise’s sentence, applying an abuse-of-discretion standard of review. See United 

States v. Godfrey, 863 F.3d 1088, 1099 (8th Cir. 2017). “A district court abuses its 

discretion when it (1) fails to consider a relevant factor that should have received 

significant weight; (2) gives significant weight to an improper or irrelevant factor; 

or (3) considers only the appropriate factors but in weighing those factors commits 

a clear error of judgment.” Id. (citation omitted). “This is such a narrow and 

deferential standard that ‘it will be the unusual case when we reverse a district court 

sentence—whether within, above, or below the applicable Guidelines range—as 

substantively unreasonable.’” United States v. Adams, 12 F.4th 883, 887 (8th Cir. 

2021) (citation omitted). Wise contends that the district court incorrectly weighed 

the factors set forth by 18 U.S.C. § 3553(a), specifically arguing that the district 

court attributed inadequate weight to mitigating factors such as his family history 

and addiction. 

The district court engaged in a thoughtful and thorough analysis of the 

§ 3553(a) factors, noting Wise’s role as the primary distributor in a large distribution 

ring; the death caused by heroin purchased from Wise; the presence of two young 

children in Wise’s residence; Wise’s failure to call 911 when a woman lost 

consciousness at his residence after using heroin purchased from him; the fact that 

Wise kept Narcan (a prescription medication used to treat narcotic overdoses) at his 

residence, which the district court found indicative of Wise’s awareness that heroin 

is lethal; Wise’s ten prior drug convictions and the fact that when Wise was 

convicted for the current offense, he was on parole for a separate drug conviction; 

Wise’s traumatic childhood; the fact that Wise’s conduct was nonviolent and did not 

involve firearms; Wise’s significant history of substance abuse; and Wise’s genuine 

remorse. The district court ultimately found that the aggravating facts and 

circumstances outweighed the mitigating facts and circumstances, the Guidelines 

range was inadequate, and a significant upward variance was appropriate. The 

district court has wide latitude to assign greater weight to some factors than others, 

and it did not abuse its discretion simply because it weighed the relevant factors 

differently than Wise would have preferred. See United States v. Nguyen, 829 F.3d 
-6- 

907, 926 (8th Cir. 2016). Therefore, we find Wise’s sentence substantively 

reasonable. 

III. 

 Finding no error, we affirm. 

______________________________