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Nos. 94-1449 and 94-1650

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United States of America, *

*

Appellee/Cross-Appellant, * Appeal from the United States

* District Court for the

v. * Northern District of Iowa.

*

Larry J. McNeil, also known *

as Larry J. McNeill, *

*

Appellant/Cross-Appellee. *

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Submitted: January 8, 1996

Filed: July 22, 1996

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Before BOWMAN, MAGILL, and HANSEN, Circuit Judges.

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HANSEN, Circuit Judge. 

Larry J. McNeil appeals from the 121-month sentence imposed upon him

by the district court following McNeil's pleas of guilty to one count of

conspiracy with intent to distribute cocaine base and one count of

unlawfully acquiring food stamps. McNeil contends (1) that the district

court erred in its determination that he was a career offender, (2) that

he was entitled to a downward adjustment for his role in the offense, (3)

that the district court's drug quantity determinations were erroneous, and

(4) that the district court should have departed further downward because

of the disparate treatment black defendants allegedly receive under the

enhanced statutory and guideline penalties imposed for cocaine base

offenses. The government cross appeals, arguing that a 
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downward departure was not justified. We affirm in part and reverse and

remand in part.

I.

At sentencing, the district court determined that McNeil was a career

offender based on his two prior state court convictions in North Carolina

for breaking and entering dwellings. Applying USSG § 4B1.1, the district

court determined a base offense level of 32 for McNeil. The court awarded

him a three-level reduction in his base offense level for acceptance of

responsibility, see USSG § 3E1.1(b), and initially assigned him a criminal

history category of VI, which resulted in a presumptively correct

guidelines sentencing range of 151 to 188 months. Relying on United States

v. Smith, 909 F.2d 1164, 1169-70 (8th Cir. 1990), cert. denied, 498 U.S.

1032 (1991), and United States v. Senior, 935 F.2d 149, 151 (8th Cir.

1991), the district court, over the government's objection, granted

McNeil's motion for a downward departure pursuant to USSG § 4A1.3, finding

that a criminal history category of VI overstated the seriousness of

McNeil's past criminal conduct. The court departed downward to criminal

history category IV with a resultant sentencing range of 121 to 151 months.

The district court then sentenced McNeil to a 121-month term to be served

concurrently with both a 10-year Iowa state sentence McNeil was then

serving for sexual abuse in the third degree and a concurrent 5-year

sentence he also received in state court for assault with intent to commit

sexual abuse. 

The role of the reviewing court on appeal from a sentencing

determination is to "determine whether the sentence -- (1) was imposed in

violation of law; (2) was imposed as a result of an incorrect application

of the sentencing guidelines; (3) is outside of the applicable guideline

range, and is unreasonable . . . ; or (4) was imposed for an offense for

which there is no applicable
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sentencing guideline and is plainly unreasonable." 18 U.S.C. § 3742(e)

(1988). We "give due deference to the district court's application of the

guidelines to the facts." 18 U.S.C. § 3742(e)(4). 

Given the facts of this case, we determine that the district court

was correct in concluding that McNeil is a career offender under the

Sentencing Guidelines. Each of McNeil's prior North Carolina state court

felony convictions for breaking and entering dwellings qualifies as a

predicate "crime of violence" for the purposes of the career offender

guideline. USSG § 4B1.1. See USSG § 4B1.2(1)(ii) (defining the term

"crime of violence" as including burglary of a dwelling). See also United

States v. Fonville, 5 F.3d 781, 784 & n.8 (4th Cir. 1993) (finding a North

Carolina conviction for breaking and entering a dwelling to be a crime of

violence within the meaning of USSG § 4B1.2(1)(i) (ii) and § 4B1.1), cert.

denied, 114 S. Ct. 1839 (1994); United States v. Raynor, 939 F.2d 191, 196-

97 (4th Cir. 1991) (same). We reject McNeil's argument that his 1982

conviction should not be used as a predicate offense for the career

offender guideline because he was committed as a "youthful offender." An

offense committed prior to age 18 counts for criminal history purposes as

long as the defendant was convicted as an adult and received a sentence of

imprisonment exceeding one year and one month. USSG § 4A1.2(d)(1),

comment. (n.7). While McNeil was only 17 years old at the time of the 1982

conviction, he was charged as an adult, convicted as an adult, and

sentenced to a three-year term of imprisonment. (Sent. Tr. at 78-84.)

Hence, the district court correctly counted the 1982 conviction as a

predicate offense for determining career offender status. See United

States v. Hazelett, 32 F.3d 1313, 1320 (8th Cir. 1994) (holding that a

conviction at age 17 qualified as a predicate offense for the career

offender guideline where the defendant had been tried and convicted as an

adult). Furthermore, McNeil's argument that a conviction for conspiracy

to distribute
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cocaine base does not qualify him for sentencing as a career offender

pursuant to USSG § 4B1.1, made for the first time on appeal, is foreclosed

by our en banc decision in United States v. Mendoza-Figueroa, 65 F.3d 691

(8th Cir. 1995) (en banc), cert. denied, 116 S. Ct. 939 (1996). 

Because the district court correctly determined McNeil to be a career

offender, McNeil's objections to the district court's other determinations

concerning his role in the offense and the quantity of drugs involved in

the conspiracy are moot. Also, his motion for a downward departure based

on the alleged discriminatory impact of the enhanced crack cocaine

penalties was correctly denied. See, e.g., United States v. Higgs, 72 F.3d

69, 70 (8th Cir. 1995); United States v. Maxwell, 25 F.3d 1389, 1396-97

(8th Cir.), cert. denied, 115 S. Ct. 610 (1994). Accordingly, we affirm

the district court's judgment on McNeil's appeal. 

II.

We next turn to the government's cross-appeal, which asserts that a

downward departure was not warranted in this case. We review a district
 Our cases articulate the following three-part test for 1

reviewing a district court's decision to depart from the

Guidelines: 

First, as a question of law, we

determine "whether the circumstances

the district court relied on for

departure are sufficiently unusual in

kind or degree to warrant departure."

. . . Second, as a question of fact,

we determine "whether the

circumstances justifying departure

actually exist." . . . Finally, with

deference to the district court, we

review the reasonableness of the

degree of departure under an abuse of

discretion standard. 

United States v. Sweet, 985 F.2d 443, 445 (8th Cir. 1993)

(quoting United States v. Lara-Banda, 972 F.2d 958, 960 (8th Cir.

1992)). Recently, however, the Supreme Court clarified that a

unitary abuse of discretion standard should guide our review of

sentencing departures. Koon, at *13. While we believe that our

three-part test is not necessarily inconsistent with the abuse of

discretion standard articulated by the Court in Koon, we

nevertheless endeavor to follow the unitary standard set forth in

Koon. 

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court's decision to depart from the Guidelines for an abuse of discretion.1

Koon v. United States, Nos. 94-1664
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& 94-8842, 1996 WL 315800, at *11-13 (U.S., June 13, 1996). The district

court's decision to depart will be "determined in large part by comparison

with the facts of other Guidelines cases," an assessment for which the

district courts have an "institutional advantage." Id. at *12. The

deference owing to a district court's sentencing decision, however, does

not render appellate review "an empty exercise," because the amount of

"deference that is due depends on the nature of the question presented."

Id. Additionally, it is clear that "[a] district court by definition

abuses its discretion when it makes an error of law." Id. at *13.

The abuse of discretion standard articulated in Koon is not

inconsistent with our statements on abuse of discretion. We have held that

"[a]n abuse of discretion occurs when a relevant factor that should have

been given significant weight is not considered, when an irrelevant or

improper factor is considered and given significant weight, or when all

proper and no improper factors are considered, but the court in weighing

those factors commits a clear error of judgment." United States v. Kramer,

827 F.2d 1174, 1179 (8th Cir. 1987) (citing Kern v. TXO Production Corp.,

738 F.2d 968, 970 (8th Cir. 1984)). We have also said that under an abuse

of discretion standard, the district court's decision will not be disturbed

as long as it is within the range of discretion afforded to a given

determination and is not influenced by a mistake of law. Kern, 738 F.2d

at 970. 
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In this case, the district court briefly discussed several factors

it believed supported a downward departure for an overstated criminal

history. In particular, the court looked at McNeil's age at the time he

committed the prior predicate felonies, some of the circumstances of their

occurrence, and how the state courts had handled the cases. While these

are proper factors to consider, after carefully reviewing the record in

this case, we are convinced that the district court committed a clear error

of judgment in its assessment of many significant aspects of McNeil's

criminal history. To be accorded deference in a determination that the

Guidelines calculation overstates a defendant's criminal history, the

district court's decision must accurately reflect the entire record of the

defendant's criminal history. Because nothing about McNeil's long and

continuing criminal career was overstated by the application of the career

offender guideline to him, we conclude that the district court abused its

discretion in departing on this basis. 

The presentence investigation report (PSIR) revealed that the

defendant had four serious encounters with juvenile authorities, beginning

at age 8 when he broke into a laundromat. At age 14, he was placed on

probation for breaking into a coin machine; at age 15 he was in detention

for seven days for breaking into a school; and in 1979 or 1980 he was again

placed on probation for breaking and entering. 

McNeil's adult record of criminal convictions begins at age 16 when

he was found guilty of one count of breaking and entering and four

misdemeanor counts of larceny. He received a one-year suspended sentence

and was placed on probation which was revoked a year later. At age 17, he

was convicted of another five counts of breaking and entering and larceny.

He received a three-year prison sentence. At age 18, and while in prison,

he pleaded guilty to assault inflicting serious injury, an aggravated

misdemeanor, and
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received a one-year sentence to be served consecutively to the prior threeyear sentence. At age 19, he pleaded guilty to assault with a deadly

weapon, an aggravated misdemeanor, and received a suspended one-year

sentence. He was placed on probation for one year which he successfully

completed. At age 20, he was charged with a felony of taking indecent

liberties with children. He was found guilty of assault on a minor, a

misdemeanor, and received a suspended one-year sentence. While still age

20, he pleaded guilty to breaking and entering an automobile, a felony,

pursuant to a plea bargain that called for the dismissal of eight other

cases against him (including two counts of breaking and entering an

automobile, auto larceny, and second degree burglary). He received another

three-year prison sentence and served 14 or more months before being

paroled. In 1988, at age 23, he pleaded guilty to a reduced charge of

felony breaking and entering and to felony failure to appear. He received

a ten-year prison sentence. He was paroled from prison in December of 1990

and violated his parole terms by moving to Iowa without prior approval.

He was arrested on a parole violation warrant and held for 28 days before

the parole commission discharged the warrant. In 1991, at age 27, he

pleaded guilty to making a false report to a law officer and to failure to

pay a fine (both misdemeanors). He became involved in the instant drug

conspiracy commencing in October 1991. In January 1992, he was charged

with four counts of sexual abuse, and pursuant to a plea agreement, he

pleaded guilty to one count of sexual abuse in the third degree, a ten-year

Class C forcible felony under Iowa law, and to one count of assault with

intent to commit sexual abuse, also a forcible felony under Iowa law. The

offense reports for the sexual abuse alleged that the defendant forced a

woman to have sexual intercourse with him at knife point. He received

concurrent ten-year and five-year sentences respectively, and he was in an

Iowa prison serving those sentences when indicted on the instant federal

offenses. 
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 Unlike the defendant in Smith, 909 F.2d at 1169-70, a case relied

on by the district court for its departure decision, McNeil's criminal

career has been neither brief nor minor in nature. The probation officer

calculated the defendant's criminal history score at 18 criminal history

points, 5 more than the 13 points it ordinarily takes to reach Criminal

History Category VI (without resorting to the automatic Category VI

classification imposed by the career offender guideline). It is abundantly

clear from the defendant's extensive record that he is a recidivist of the

first water. It is also clear that the seriousness of his criminal conduct

escalated as he grew older. Probation has not deterred him from the

commission of further crime; periods of incarceration have not deterred

him; nor has the granting of parole kept him from resuming his life of

crime when released from prison. His most recent Iowa state court

convictions for sexual abuse and assault with intent to commit sexual abuse

aptly demonstrate that the defendant is capable of violent crime and that

his is precisely the kind of a criminal career that needs to be stopped

short now by the unmitigated application of the career offender guideline.

The factual circumstances relied on by the district court for

departure do not accurately reflect the record in this case, and the

district court committed a clear error of judgment by departing on this

basis. Accordingly, we vacate the defendant's sentence and remand the case

for resentencing within the 151- to 188-month range established by the

correct application of the career offender guideline to the defendant.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.