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The Honorable John A. Jarvey, United States District Judge for the Southern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-1498

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Herbert Lee Coleman, *

* 

Appellant. *

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Submitted: October 18, 2010

Filed: March 30, 2011

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Before SMITH, COLLOTON, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

Herbert Lee Coleman appeals from his sentence of 170 months imprisonment

imposed after his conviction for conspiracy to distribute heroin and distribution of

heroin. See 21 U.S.C. §§ 841, 846. Coleman contends the district court1

 procedurally

erred and imposed an unreasonable sentence. We affirm.

Coleman pled guilty. At his sentencing hearing, the district court calculated a

base offense level of 26 and a criminal history category of III. The district court

applied the career offender enhancements contained in the United States Sentencing
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 Coleman professes to challenge the career offender Guidelines definition of

felony on substantive reasonableness grounds. Because Coleman effectively argues

that the district court incorrectly applied the career offender Guidelines range, we

construe his argument as one of procedural error. See United States v. Feemster, 572

F.3d 455, 461 (8th Cir. 2009) (en banc) (describing how procedural error includes

improper application of the Guidelines).

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Guidelines section 4B1.1 and increased Coleman’s offense level to 32 and his criminal

history category to VI. The district court subtracted three offense levels for

acceptance of responsibility. With an offense level of 29 and a criminal history

category of VI, Coleman’s Guidelines range was 151 to 188 months imprisonment.

The district court sentenced Coleman to 170 months imprisonment.

Coleman argues that the district court erred by treating Coleman’s state

misdemeanor conviction that was punishable by imprisonment for less than two years

as a qualifying felony under the career offender Sentencing Guidelines.

Acknowledging that the district court correctly applied the definition of “prior felony

conviction” contained in section 4B1.2 of the Sentencing Guidelines, Coleman

contends the Sentencing Commission exceeded its statutory mandate in section 4B1.2

by not using the definition for qualifying “violent felony” convictions from the Armed

Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B).2

 According to Coleman, if

the Sentencing Commission had given “prior felony conviction” the definition of

“violent felony” from the ACCA, his misdemeanor conviction is not a qualifying

felony because “violent felony” only includes state misdemeanor convictions

punishable by imprisonment for more than two years. We review the district court’s

application of the Sentencing Guidelines de novo. United States v. Daniels, 625 F.3d

529, 534 (8th Cir. 2010).

We conclude that the Sentencing Commission acted well within its statutory

authority in defining “prior felony conviction” for purposes of the career offender

Guidelines differently than “violent felony” under the ACCA. Congress directed the
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Sentencing Commission to set higher Guidelines ranges for certain felony recidivists,

28 U.S.C. § 994(h), but did not specify how the Commission should define “felony.”

Accordingly, the Commission was free to define “prior felony conviction” for

purposes of the career offender Guidelines as an “adult federal or state conviction for

an offense punishable by death or imprisonment for a term exceeding one year.”

United States Sentencing Commission, Guidelines Manual, §4B1.2, comment. (n.1).

Although Coleman is right that the definitions of certain terms in section 4B1.2 and

the Armed Career Criminal Act are used interchangeably, United States v. Craig, 630

F.3d 717, 723 (8th Cir. 2011), there is no basis for concluding that the statutory

definitions from the ACCA somehow limit the Sentencing Commission’s statutory

authority under section 994(h), United States v. Ross, 613 F.3d 805, 809-10 (8th Cir.

2010) (recognizing distinctions between the definitions in §4B1.1 and § 924(e)).

Thus, because the district court correctly applied the definition of a prior felony

conviction from section 4B1.2, it properly determined that Coleman should be

sentenced as a career offender.

Coleman also argues that no presumption of reasonableness applies to a

sentence imposed under the career offender Guidelines and that his sentence was

substantively unreasonable. Coleman reasons that without the presumption, the

district court abused its discretion in not varying downward based on his minor

convictions and the lack of empirical evidence supporting an enhanced sentence for

career offenders. We review the substantive reasonableness of a sentence under a

“deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41

(2007). “Where, as here, the sentence imposed is within the advisory guideline range,

we accord it a presumption of reasonableness.” United States v. Bauer, 626 F.3d

1004, 1010 (8th Cir. 2010). 

Coleman complains that the applicable Sentencing Guideline, U.S.S.G. §4B1.1,

should not be accorded a presumption of reasonableness because it is the product of

congressional direction in the Sentencing Reform Act, 28 U.S.C. § 994(h), not the
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Sentencing Commission’s application of empirical data and national experience. We

apply a presumption of reasonableness to a within-Guidelines-range sentence because

it “recognizes the real-world circumstance that when the judge’s discretionary

decision accords with the Commission’s view of the appropriate application of

§ 3553(a) in the mine run of cases, it is probable that the sentence is reasonable.” Rita

v. United States, 551 U.S. 338, 350-51 (2007). We have extended this logic to

Guideline sections that are “the product of congressional direction rather than the

empirical approach described by Rita” because “where a sentencing judge agrees with

Congress, then the resulting sentence is also probably within the range of

reasonableness.” United States v. Kiderlen, 569 F.3d 358, 369 (8th Cir. 2009)

(discussing U.S.S.G. §2G2.2). 

Although the presumption of reasonableness applies, even without it we easily

conclude that the district court selected a reasonable sentence. In selecting Coleman’s

sentence, the district court explained that it had considered all of the factors in section

3553(a), cited Coleman’s complete lack of gainful employment, and took note of

Coleman’s cooperation upon arrest. The district court disagreed with Coleman’s

description of his criminal history as minor and instead characterized it as extensive

and justifying the career offender enhancement. The district court found that a

substantial sentence was necessary to afford adequate deterrence, to protect the public,

to avoid unwarranted sentencing disparities, and to further the congressional intent of

severely sentencing career offenders. It concluded, “[T]he Guideline sentencing

system adequately addresses the circumstances of this defendant and the sentencing

range is reasonable.” The district court permissibly exercised its discretion to select

a sentence in the middle of the advisory Guidelines range.

Finally, Coleman’s argument that the career offender Guidelines are

unsupported by empirical evidence is not an issue of substantive reasonableness and

not properly made to this court. United States v. Talamantes, 620 F.3d 901, 902 (8th

Cir. 2010). To the extent the district court could have varied from the career offender
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Guidelines based on a policy disagreement, Spears v. United States, 129 S. Ct. 840,

843-44 (2009), it was not required to do so, Talamantes, 620 F.3d at 902. 

Accordingly, we affirm the judgment of the district court.

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