United States Court of Appeals

For the Eighth Circuit

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No. 13-1081

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Renee Dattolico

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Northern District of Iowa - Sioux City

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 Submitted: September 23, 2013

Filed: October 1, 2013

[Unpublished]

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Before WOLLMAN, BEAM, and SMITH, Circuit Judges.

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PER CURIAM.

Renee Dattolico appeals, challenging the sentence imposed by the district

court following Dattolico's guilty plea to, generally stated, one count of conspiracy 1

The Honorable Donald E. O'Brien, United States District Judge for the

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Northern District of Iowa.
to possess with intent to distribute methamphetamine, and one count of failure to

appear. The district court sentenced Dattolico to 180 months' imprisonment, 112

months below the suggested Guidelines sentence of 292 to 365 months. On appeal,

Dattolico claims the court procedurally erred in arriving at her sentence and argues

the resulting sentence is substantively unreasonable. We affirm. 

I. BACKGROUND

The instant drug charge stems from two separate controlled drug transactions

in 2011 and 2012, together involving little more than five grams of

methamphetamine. Dattolico further admitted to drug distribution within 1,000 feet

of a park in Sioux City, Iowa. Later, Dattolico failed to appear for her scheduled trial,

resulting in an amendment to the indictment to include the failure to appear count. 

Dattolico pleaded guilty to both counts contained in the superseding indictment. 

Additionally, the career offender enhancement was included in the suggested

Guidelines sentence because Dattolico had been convicted of two prior felony

controlled substance offenses prior to these federal charges. See U.S.S.G. § 4B1.1(a). 

On appeal, Dattolico repeats much of her argument made to the district court

at sentencing. She claims that the court should have exercised its discretion to vary

from the suggested Guidelines sentence to an even greater extent due to the unique

circumstances of this case, including, for example, Dattolico's non-existent criminal

history prior to her methamphetamine addiction, as well as the very small total

amount of drugs involved leading to a lengthy suggested Guidelines sentence by

virtue of the application of the career offender enhancement. She claims that

"[a]pplication of the career offender guideline in [her] case perverts both the 'quantity

of the drug' aspect of the sentencing guidelines and the recidivist drug offender leg."

Not only, claims Dattolico, was the total amount of drugs involved in the application

of the career offender enhancement minuscule (23 grams), but Dattolico was an

addict–a combination that should not equal fifteen years behind bars. 

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Both the government and Dattolico acknowledge that Dattolico was properly

scored as a career offender for purposes of arriving at a suggested Guidelines range. 

Dattolico, however, argues that because the court has the discretion to disregard

application of the enhancement entirely for policy reasons, it should have done so

here. This, she suggests, would have resulted in a sentence lower than 180 months

because the starting point would necessarily have been lower. Dattolico additionally

supplemented the appellate brief with a pro se letter to the court, which we have

reviewed. Generally, this letter restates, in her own words, why the district court

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should have disregarded the application of the career offender enhancement in this

particular case, especially given the resulting sentencing disparity, and the fact that,

according to Dattolico, the "career offender" nomenclature grossly misrepresentsthe

reality of this defendant and her past dealings. 

II. DISCUSSION

We review a district court's sentence for abuse of discretion. Under this

standard, we initially review a sentence for any claimed procedural error

and then, if necessary, for substantive reasonableness. Procedural errors

include such things as improperly calculating the Guidelines range,

treating the Guidelines as mandatory, failing to consider the 18 U.S.C.

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

or failing to adequately explain the chosen sentence. If the decision is

procedurally sound, we review the substantive reasonableness of the

sentence, considering the totality of the circumstances.

"'It is Eighth Circuit policy not to consider pro se filings when the appellant

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is represented by counsel.'" United States v. Montgomery, 701 F.3d 1218, 1220 n.2

(8th Cir. 2012) (quoting United States v. Halverson, 973 F.2d 1415, 1417 (8th Cir.

1992)), cert. denied, 133 S. Ct. 2814 (2013). Nevertheless, we have reviewed

Dattolico's letter and consider it to the extent it addresses arguments made by her

counsel and highlights relevant facts therein. 

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United States v. Mabery, 686 F.3d 591, 598 (8th Cir. 2012) (citations omitted). 

"[W]here a district court has sentenced a defendant below the advisory guidelines

range, it is nearly inconceivable that the court abused its discretion in not varying

downward still further." United States v. Black, 670 F.3d 877, 882 (8th Cir. 2012)

(quotation omitted). And, finally, if, as here, a defendant fails to object timely to a

proceduralsentencing error, the error is forfeited and may only be reviewed for plain

error. United States v. Hill, 552 F.3d 686, 690 (8th Cir. 2009). "Under plain error

review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects

substantial rights." Id. (quotation omitted).

Despite Dattolico's arguments on appeal, there was no procedural error here,

whether we view it through a plain error lens or otherwise. Dattolico argues that the

district court did not adequately explain its chosen sentence. Our thorough review

of the sentencing transcript reveals the district court followed the proper sentencing

procedure by determining the applicable advisory Guidelines range, was fully

cognizant of the advisory nature of the Guidelines, considered the § 3553(a) factors

and adequately explained the chosen sentence, which reflected a considerable

variance. The court received briefing on Dattolico's variance request; listened to

Dattolico's argument regarding the policy considerations at play; considered the many

favorable letters written on Dattolico's behalf, as well as her own allocution

statement; and was fully aware of Dattolico's personal circumstances, history and

conduct. 

That the district court did not vary further in its determination regarding

Dattolico's sentence was not an abuse of discretion and the court imposed a

reasonable sentence. Importantly, the district court was aware that it could vary

downward based on a policy disagreement with the application of the career offender

enhancement in this particular case and sentenced Dattolico accordingly. United

States v. Coleman, 635 F.3d 380, 383 (8th Cir. 2011). "Whatever the district court's

views as to the Sentencing Commission's policy judgment underlying a particular

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guidelines provision, [or whether the Commission's intended purpose is furthered in

a particular case given the specific facts,] our proper role on appeal is only to

determine whether the court abused its discretion by imposing a substantively

unreasonable sentence on a particular offender." United States v. Talamantes, 620

F.3d 901, 902 (8th Cir. 2010). Accordingly, we conclude that the district court did

not abuse its discretion in arriving at the imposed sentence. 

III. CONCLUSION

We affirm the judgment of the district court.

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