United States Court of Appeals

For the Eighth Circuit

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No. 21-3654

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United States of America,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Jerell Haynie, also known as Bottie, also known as “T”,

lllllllllllllllllllllDefendant - Appellant.

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Appeal from United States District Court 

for the District of Nebraska - Omaha

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 Submitted: March 14, 2023

Filed: August 2, 2023

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Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges. 

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COLLOTON, Circuit Judge.

A jury convicted Jerell Haynie of a conspiracy under the Racketeer Influenced

and Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1962(d), based on his

involvement with the Crips street gang. This court affirmed Haynie’s conviction, but

remanded for resentencing. United States v. Haynie, 8 F.4th 801, 807 (8th Cir. 2021). 
On remand, the district court*

 imposed a sentence of 71 months’ imprisonment. 

Haynie appeals the sentence, and we affirm. 

The principal dispute on appeal concerns whether the district court erred by

failing to account for a term of imprisonment that Haynie served in Nebraska for state

drug offenses that were committed in the course of the RICO conspiracy. In July

2012, Haynie pleaded guilty in Douglas County District Court to possessing crack

cocaine on November 25, 2011. The state court allowed Haynie to enter a county

drug court program instead of state prison. Within several months, however, Haynie

was selling crack cocaine, and the state court terminated his participation in the drug

court program. Haynie began serving a state prison sentence in June 2013. In May

2014, he pleaded guilty to selling crack cocaine on December 11 and December 18,

2012. In June 2017, while Haynie was incarcerated in Nebraska, a federal grand jury

charged him with committing federal offenses. 

The indictment charged Haynie with conspiring to violate RICO through a

pattern of racketeering activity as part of an “enterprise,” namely, the Crips street

gang. The indictment alleged that Haynie committed several acts of racketeering

activity, including distribution of crack cocaine between August 2011 and May 2013,

one particular possession with intent to distribute crack cocaine on November 25,

2011, and two attempted shootings of suspected informants in 2008 and 2012,

respectively. The indictment also charged Haynie with committing three other

offenses related to one attempted shooting. 

A jury found Haynie guilty of the RICO conspiracy but acquitted him on the

other counts. On remand from the first appeal, the district court calculated an

advisory guideline range of 57 to 71 months’ imprisonment. Haynie argued for a

*The Honorable Joseph F. Bataillon, United States District Judge for the

District of Nebraska.

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sentence below the advisory range based in part on the fact that he served time in

Nebraska prison for state drug offenses. The district court rejected the argument, and

sentenced Haynie to 71 months’ imprisonment. 

Haynie argues that the district court should have adjusted his sentence

downward based on USSG § 5G1.3(b) to account for his service of time in Nebraska

on drug charges. Section 5G1.3 governs the imposition of a sentence on a defendant

who is “subject to an undischarged term of imprisonment.” When the term of

imprisonment “resulted from another offense that is relevant conduct to the instant

offense of conviction,” a district court “shall adjust the sentence for any period of

imprisonment already served on the undischarged term of imprisonment.” USSG

§ 5G1.3(b)(1). At the time of Haynie’s resentencing, however, he had completed his

state sentence, and was not “subject to an undischarged term of imprisonment.” 

Section 5G1.3(b) was thus not applicable. United States v. Fisher, 25 F.4th 1080,

1086 (8th Cir. 2022). 

Haynie also suggests that he was entitled to a downward departure based on the

commentary to USSG § 2E1.1. Section 2E1.1 provides that the base offense level for

a RICO offense is 19, unless the offense level applicable to the underlying

racketeering activity is greater. The district court determined the minimum offense

level of 19 for Haynie. Application note 4 to § 2E1.1 explains that where conduct

charged in the federal conspiracy previously resulted in a sentence in state court, the

district court sometimes should treat the conduct as a prior sentence for purposes of

criminal history and not part of the instant offense. “If this treatment produces an

anomalous result in a particular case, a guideline departure may be warranted.” Id.

One of Haynie’s prior drug offenses in Nebraska—the possession of crack

cocaine on November 25, 2011—was treated as a prior sentence in this federal case. 

Haynie does not explain why treating the prior drug conduct as criminal history rather

than as offense conduct leads to an “anomalous” result here, and the district court’s

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refusal to grant a downward departure on that basis is not reviewable in any event. 

United States v. Dixon, 650 F.3d 1080, 1084 (8th Cir. 2011); see United States v.

Clark, 28 F. App’x 34, 36 (2d Cir. 2001).

Haynie also contends that his sentence of 71 months’ imprisonment was

unreasonable under 18 U.S.C. § 3553(a), because he “has now been sentenced in state

and federal court for essentially the same criminal conduct.” The district court found,

however, that during the course of the racketeering conspiracy, Haynie participated

in two attempted shootings in addition to distributing crack cocaine. The court

determined that while Haynie had been punished in Nebraska for certain drug

trafficking and associated violence, he had “not been held directly accountable for the

violent criminal conduct” that was part of the racketeering conspiracy in this case. 

Therefore, the court declined to vary downward from the advisory range. The court

did allow Haynie to receive “some credit for the time that he was doing in state court”

by ordering concurrent state and federal sentences at the original sentencing. This

balancing of the various considerations reasonably punished Haynie for the federal

offense, including for conduct that was not part of the state offenses. The sentencing

decision was not an abuse of discretion. 

In a pro se filing, Haynie argues that his sentence of 71 months’ imprisonment

is unreasonable because the court took away “credit” that he received at the original

sentencing. This argument misunderstands the net effect of the two proceedings. The

court originally sentenced Haynie to 84 months’ imprisonment, but effectively gave

Haynie “credit” for the eleven-month period from July 2018 through May 2019 when

he was serving federal and state sentences concurrently. The incremental punishment

for the federal offense originally was 73 months’ imprisonment. On remand, the state

sentence had been discharged, and the court imposed only 71 months’ imprisonment

for the federal offense. Haynie thus received a lesser net punishment after the

remand, and he did not lose any “credit” for time served in state custody. 

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The judgment of the district court is affirmed. 

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