_____________ Nos. 94-1449 and 94-1650

_____________ 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. *

_____________ Submitted: January 8, 1996 Filed: July 22, 1996

_____________ Before BOWMAN, MAGILL, and HANSEN, Circuit Judges.

_____________ HANSEN, Circuit Judge.
Larry J. McNeil appeals from the 121 -month sentence imposed upon him bythe district court following McNeil's pleas of guilty to one count of conspira cywith intent to distribute cocaine base and one count o f unlawfullyacquiring 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 determin ations were erroneous, and (4) that the district court should have departed further downward because of the disparate treatment black defendants allegedly receive under th e enhan ced statutory and guideline penalties imposed for cocaine bas e 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 ente ring dwellings. Applying USSG § 4B1.1, the district court determined a base offense level of 32 for McNeil. The court awarded hima three-level reduction in his base offense level for acceptance o f responsibility, see USSG § 3E1.1(b), and initial ly assigned him a criminal histor ycategory of VI, which resulted in a presumptively correc t guidelines sentencing range of 151 to 188 months. Relying on United State s
v. Smith , 909 F.2d 1164, 1169-70 (8th Cir. 1990), cert. denied , 498 U.S. 103 2 (1991), and United States v. Senior , 935 F.2d 149, 151 (8th Cir

. 1991) , the district court, over the government's objection, grante d McNeil's motion for a downward departure pursuan t to USSG § 4A1.3, finding that a criminal history category of VI overstated the seriousness o f 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 th en sentenced McNeil to a 121-month term to be served
conc urrentlywith both a 10-year Iowa state sentence McNeil was the n
serv ing for sexual abuse in the third degree and a concurrent 5-yea r sentence he also received in state court for ass ault with intent to commit sexual abuse.

The rol e of the reviewing court on appeal from a sentencin g 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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sen tencing 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 t he facts of this case, we determine that the district cour t
was correct in concluding that McNeil is a career offender under th e Sentencing Guidelines . Each of McNeil's prior North Carolina state court felony convictions for breaking and entering dwellings qualifies as a predica te "crime of violence" for the purposes of the career offende r gui deline. USSG § 4B1.1. See USSG § 4B1.2(1)(ii) (defining the ter m "crime of violence" as including burglary of a dwelling). See also United States v. Fonville , 5 F.3d 781, 784 & n.8 (4th C ir. 1993) (finding a North Carolina conviction f or 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 198 2 convictio n should not be used as a predicate offense for the caree r offender guideline be cause he was committed as a "youthful offender." An offense committed pri or 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 198 2
con viction, he was charged as an adult, convicted as an adult, an d sente nced to a three-year term of imprisonment. (Sent. Tr. at 78-84. ) Henc e, the district court correctly counted the 1982 conviction as a predic ate offense for determining career offender status. See Unite d States v. Hazelett , 32 F.3d 1313, 1320 (8th Cir. 1994) (holding that a
conv iction at age 17 qualified as a predicate offense for the caree r offender guideline wh ere 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 ba se does not qualify him for sentencing as a career offende r pursuant to USSG § 4B1.1, made for the first tim e on appeal, is foreclosed by our en banc decisi on 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 co urt's other determinations concerning his role in the offense and the quantity of drugs involved in the conspiracy are mo ot. Also, his motion for a downward departure based
on the alleged discriminatory impact of the enhanced crack cocain e penalties was correctly denied. See, e.g. , United States v. Higgs , 72 F.3 d 69, 70 (8 th Cir. 1995); United States v. Maxwell , 25 F.3d 1389, 1396-9 7 (8thCir.), cert. denied , 115 S. Ct. 610 (1994). Accordingly, we affirm the district court's judgment on McNeil's appeal.

II.

We next t urn 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
. -5- court's decision to depart from the Guidelines for an abuse of d iscretion. 1 Koon v. United States , Nos. 94-1664

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& 94-8842, 1996 WL 31 5800, at *11-13 (U.S., June 13, 1996). The district court's decision to depart will be "determined i n large part by comparison with the facts of other Guidelines cases," an assessment for which th e dist rict courts have an "institutional advantage." Id. at *12. Th e deference owing to a district court's sentencing decision, however, does not render appellate review "an empty exercise," because the amount o f "deference that is due depends on the nature of the question presented." Id. Addit ionally, it is clear that "[a] district court by definitio n abuses its discretion when it makes an error of law." Id. at *13.

The abuse of discretion standard articulated in Koon is no t inconsistent with our statements on abuse of discretion. We have held tha t "[a]n abuse of discretion occurs when a relevant factor that should have been given significant weight is not considered, when an irrelevant o r imp roper factor is considered and given significant weight, or when al l 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 als o said that under an abuse of discretion standard, the district court's decision will not be disturbe d
as long as it is within the range of discretion afforded to a give n determinationand is not influenced by a mistake of law. Kern , 738 F.2d at 970.

### -7- In this case, the district court briefly discussed several factor s it bel ieved supported a downward departure for an overstated crimina l 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 i n this case, we are convinced that the district court committed a clear erro r of judg ment in its assessment of many significant aspects of McNeil' s criminal history. To be accorded deference in a determination that th e Gui delines calculation overstates a defendant's criminal history, th e district court's decision must accurately reflec t the entire record of the defend ant's criminal history. Because nothing about McNeil's long an d 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 pr esentence investigation report (PSIR) revealed that th e defendant had four serious encounters with juven ile authorities, beginning at age 8 whe n he broke into a laundromat. At age 14, he was placed o n probation for breakin g 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 agai n 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 fou r 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 breakingand entering and larceny. He received a three-year prison sentence. At ag e 18, and while in prison, he ple aded guilty to assault inflicting serious injury, an aggravate d misdemeanor, and

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received a one-year sentence to be served consecutively to the prior three

year sent ence. At age 19, he pleaded guilty to assault with a deadl y
we apon, an aggravated misdemeanor, and received a suspended one-yea r sentence. He was placed on probation for one year which he successfully complete d. At age 20, he was charged with a felony of taking indecen t libertie s with children. He was found guilty of assault on a minor, a misdemeanor, and rece ived 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 othe r
cases against him (including two counts of breaking and entering a n automobile, auto larceny, and second degree burglary). He received anothe r thre e-year prison sentence and served 14 or more months before bein g paro led. In 1988, at age 23, he pleaded guilty to a reduced charge o f felony breaking and entering and to felony failu re to appear. He received
a ten-year prison sentence. He was paroled from prison in December of 199 0 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, h e pleaded guilty to making a false report to a law officer and to failure to pay a fin e (both misdemeanors). He became involved in the instant dru g conspiracycommencing in October 1991. In January 1992, he was charge d withfour counts of sexual abuse, and pursuant to a plea agreement, h e pleaded guilty to one count of sexual abuse in the third degree, a ten-yea r Class C forcible felony under Iowa law, and to one count of assault with intent to commit sexual abuse, also a forcible f elony 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 receive d concurrent ten-year and five-year sentences resp ectively, and he was in an Iowa prison serving those sentences when indicted on the instant federal offenses.

### -9- Unlik e the defendant in Smith , 909 F.2d at 1169-70, a case relie d
on by the district court for its departure decision, McNeil's crimina l career has been neith er 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 Crimina l Histor yCategory VI (without resorting to the automatic Category V I classification imposed by the career offender guideline). It is abundantl y 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 conduc t escala ted as he grew older. Probation has not deterred him from th e commis sion of further crime; periods of incarceration have not deterre d him; nor has the granting of parole kept him from resuming his life o f cri me when released from prison. His most recent Iowa state cour t convictions for sexual abuse and assault with intent to commit sexual abus e aptly demonstrate tha t the defendant is capable of violent crime and that his is precisely the kind of a criminal career that needs to be stoppe d short now by the unmitigated application of the career offender guideline.

The factual circumstances relied on by the district court fo r depa rture do not accurately reflect the record in this case, and th e district court committed a clear error of judgment by departing on thi s basis. Accordingly, we vacate the defendant's sentence and remand the cas e for resentencing within the 151- to 188-month range established by th e correct application of the career offender guideline to the defendant.

A true copy.

Attest:

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