United States Court of Appeals

For the Eighth Circuit

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No. 17-2445

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Wesley Schmelzer

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa - Cedar Rapids

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Submitted: May 18, 2018

Filed: August 27, 2018

[Unpublished]

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Before WOLLMAN, BENTON, and STRAS, Circuit Judges.

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PER CURIAM.

Wesley Schmelzer pleaded guilty to possession with intent to distribute a

controlled substance in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). After

determining that Schmelzer was a career offender under United States Sentencing

Guidelines (U.S.S.G. or Guidelines) § 4B1.1, based on what it found to be six
predicate offenses, the district court sentenced him to 235 months’ imprisonment, to 1

be followed by a five-year term of supervised release. Schmelzer alleges procedural

error in his sentence and challenges its substantive reasonableness. We affirm. 

The probation office’s presentence report (PSR) recommended that Schmelzer

be categorized as a career offender based on his: (1) March 2002 conviction for

delivery of a controlled substance, (2) April 2002 conviction for possession of

cocaine with intent to deliver,(3) January 2010 conviction for possession of precursor

products used to manufacture a controlled substance (possession of precursors), (4)

March 2010 conviction for possession of precursors, (5) May 2010 conviction for

possession of precursors, and (6) March 2013 conviction for domestic assault causing

bodily injury (strangulation). Schmelzer did not object to his career offender status

or to the characterization of the six offenses as predicate offenses. Accordingly, the

PSR determined that Schmelzer had a total offense level of 31 and a criminal history

category of IV, resulting in an advisory Guidelines range of 188 to 235 months’

imprisonment. 

Schmelzer filed a motion for downward variance, which the district court

denied. In imposing sentence, the district court stated that Schmelzer had a

“[s]ignificant and very serious criminal history” and is “in the truest sense a career

criminal, a career offender.” The district court also noted that Schmelzer had

“multiple prior convictions for burglary, assaults, multiple domestic abuse assaults,

theft, possession of controlled substance, felony delivery of controlled substances,

felony possession of cocaine with intent to deliver, escape, . . . 3 felony possessions

of precursors, [and] harassment.” It stated that Schmelzer “was on state paper when

he committed this offense” and that he had six predicate offenses in support of his

career offender status, which did not take into account a “number of serious

The Honorable Linda R. Reade, United States District Judge for the Northern 1

District of Iowa.

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convictions” from when he was younger, including third-degree burglary, theft,

multiple assaults, multiple interferences with official acts, multiple instances of

operating a motor vehicle without a license, and public intoxication. The district

court further added that it had “carefully considered each and every factor under 18

United States Code Section 3553(a)” and that even if Schmelzer were not found to

be a career offender, it “would depart or vary upward to . . . 235 months, the top of

the advisory guidelines, based on [Schmelzer’s] entire record;” the seriousness of his

criminal history; his recidivism; his lack of respect for the law and others; the need

to provide just punishment, to afford adequate protection, and to protect the public

from further crimes. 

“In reviewing a challenge to a sentence, we must first ensure that the district

court committed no significant procedural error.” United States v. Timberlake, 679

F.3d 1008, 1011 (8th Cir. 2012) (internal quotation omitted). “If we discover no

procedural error, we then consider the substantive reasonableness of the sentence

imposed under a deferential abuse-of-discretion standard.” Id.

Under Guidelines § 4B1.1(a), a defendant may be sentenced as a career

offender if (1) he “was at least eighteen years old at the time [he] committed the

instant offense of conviction; (2) the instant offense of conviction is either a crime of

violence or a controlled substance offense; and (3) the defendant has at least two prior

felony convictions of either a crime of violence or a controlled substance offense.” 

As relevant here, the term “controlled substance offense” is defined as any state or

federal offense that is punishable by more than one year imprisonment and “prohibits

the manufacture, import, export, distribution, or dispensing of a controlled substance

. . . or possession of a controlled substance . . . with intent to manufacture, import,

export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). Schmelzer concedes that the

district court correctly sentenced him as a career offender based on his 2002 delivery

of a controlled substance conviction, his 2002 possession of cocaine with intent to

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deliver conviction, and his 2013 domestic abuse involving strangulation conviction. 

Schmelzer instead argues the district court committed procedural error in

considering his three convictions for possession of precursors as predicate offenses

under Guidelines §§ 4B1.1 and 4B1.2. He contends that the statute under which he

was convicted, Iowa Code § 124.401(4), criminalizes conduct that is outside the

Guidelines definition of a “controlled substance offense.” We need not decide this

issue, however, because even if Schmelzer’s possession of precursor offenses were

disregarded, he nonetheless would qualify as a career offender based on his two

uncontested controlled substance offenses and his one uncontested crime of violence

offense. Accordingly, any error in the district court’s determination that he had six

predicate offenses—instead of three—was harmless.

Schmelzer also contends that the district court imposed a substantively

unreasonable sentence by failing to appropriately weigh the sentencing factors set

forth in 18 U.S.C. § 3553(a). He argues that the district court placed too much weight

on his criminal history and excluded from its consideration other relevant § 3553(a)

factors. We disagree. In addition to expressly stating that it had considered each of

the § 3553(a) factors, the district court considered Schmelzer’s age, family, education,

and employment. It acknowledged his father-figure role for his fiancée’s child and

his assertion that he has mental health issues. Against those factors, however, and as

noted above, the district court weighed Schmelzer’s lengthy criminal history, his

recidivism, the need to provide just punishment, and the need to protect the public

from Schmelzer’s further crimes. The district court also noted that Schmelzer lacked

a period of sobriety sufficient to enable mental health professionals to accurately

diagnose the extent of any serious mental illness. The district court’s thorough

consideration of the § 3553(a) factors satisfies us that it did not abuse its discretion

in sentencing Schmelzer as it did. See United States v. Gasaway, 684 F.3d 804, 808

(8th Cir. 2012) (holding that the district court may balance the § 3553(a) factors as

it deems appropriate). 

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The sentence is affirmed. We grant counsel’s motion for leave to withdraw. 

We deny Schmelzer’s motions to strike the brief prepared by counsel and for leave

to file a supplemental brief.

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