United States Court of Appeals

For the Eighth Circuit

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No. 17-2223

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Adam Alan Anderson

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the District of Minnesota - St. Paul

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Submitted: April 13, 2018

Filed: August 7, 2018

[Unpublished] 

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Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

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PER CURIAM.

During a traffic stop in Nokay Lake, Minnesota, officers found two ounces of

methamphetamine taped to Zachary Flannigan, a computer in Adam Anderson’s

backpack, $9,571 in cash, and a digital scale. A warrant search of an apartment

rented by Anderson in Ogilvie, Minnesota, yielded 1,238 grams ofmethamphetamine,

glass pipes with residue, syringes, and a loaded semi-automatic pistol in a safe. 
Anderson and Flannigan were charged with conspiracy to distribute 50 grams or more

of actual methamphetamine. Anderson was also charged with being a felon in

possession of a firearm. Anderson pleaded guilty to conspiracy to distribute .5-1.5

kilograms of actual methamphetamine; the government dismissed the felon in

possession charge. The district court sentenced Anderson to 240 months in prison. 

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He appeals the sentence. We affirm. 

In the plea agreement, the parties disagreed whether a two-level enhancement

for possession of a firearm should apply. They agreed that Anderson’s criminal

history category was likely VI, resulting in an advisory guidelines sentencing range

of 235 to 293 months if the firearm enhancement applied, and 188 to 235 months if

it did not. The Presentence Investigation Report (PSR) stated that Anderson had ten

prior felony and at least twelve prior misdemeanor convictions. At sentencing, the

district court found that the firearm enhancement applied but a contested role-in-theoffense enhancement did not, resulting in an advisory range of 235 to 293 months

imprisonment. In imposing the 240-month sentence, the district court explained:

The guideline range in your case is appropriate. . . . You’ve

earned the Category 6 Criminal Historymultiple times over. You’ve got

about twice as many criminal history points as you would have to be in

that [category] . . . . The criminal behavior that’s led to this point started

so early and has been so persistent and is partly drug related and partly

not drug related.

[T]he sentence has to reflect not only you personally . . . why you

have developed and maintained such an active disregard for lawful

behavior, but also the sentences that are given to people who are

somewhat comparable . . . . [Y]ou should really get a sentence towards

the upper end of that range to put you in a comparable position of other

people who have . . . blow[n] the lid off the criminal history and the drug

The Honorable Joan N. Ericksen, United States District Judge for the District 1

of Minnesota.

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amounts [which] are so extreme. I’m going to give you a sentence that

is toward the bottom though because it’s a long time.

Flannigan also pleaded guilty to the methamphetamine conspiracy charge. 

Flannigan was sentenced by Judge Ericksen to 169 months imprisonment after

Anderson was sentenced. Flannigan’s PSR stated that the Probation Officer did not

apply an enhancement for the firearm found in Anderson’s apartment because “the

firearm did not belong to Flannigan, and this officer has no further information [he]

possessed any firearm during the instant offense.” The PSR recommended an

advisory guidelines range of 188 to 235 months imprisonment.

On appeal, Anderson first argues the gun enhancement “was equally applicable

to Mr. Flannigan” and therefore the district court created an unwarranted sentencing

disparity when it did not apply the same guidelines range to similarly situated

codefendants. This contention is without merit. Anderson does not argue the district

court clearly erred in applying the firearmenhancement in determining his guidelines

range. Lacking a full sentencing record, he has no basis to challenge the range

determined at Flannigan’s later sentencing. In sentencing Anderson, the district court

explicitly took into account the unwarranted disparity factor in 18 U.S.C.

§ 3553(a)(6), properly comparing Anderson to other defendants who had a similarly

deplorable criminal history and were guilty of distributing substantial quantities of

methamphetamine. “It is not an abuse of discretion for a district court to impose a

sentence that results in a disparity between co-defendants when there are legitimate

distinctions between the co-defendants.” United States v. Johnson, 688 F.3d 444, 448

(8th Cir. 2012) (quotation omitted), cert. denied, 568 U.S. 1256 (2013). In this case,

the gun enhancement alone was a substantial “legitimate distinction” between

Anderson and Flannigan.

Anderson next argues, submitting the issue under Anders v. California, 386

U.S. 738 (1967), that guidelines provisions that give the actual methamphetamine

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amount a higher base offense level “than the mixture amount on which it was based”

are excessive, are not supported by empirical research, and create an unwarranted

sentencing disparity. “[D]istrict courts are entitled to reject and vary categorically

from [particular] Guidelines based on a policy disagreement with those Guidelines.” 

Spears v. United States, 555 U.S. 261, 265-66 (2009). Thus, this argument was

properly made to the district court. “But it is not properly made to this court because

our appellate role is limited to determining the substantive reasonableness of a

specific sentence.” United States v. Talamantes, 620 F.3d 901, 902 (8th Cir. 2010)

(quotation omitted). Here, the district court imposed a carefully considered sentence

that is within the advisory guidelines range. The sentence is not substantively

unreasonable.

The judgment of the district court is affirmed. 

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