United States Court of Appeals

For the Eighth Circuit

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No. 14-1455

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United States of America,

lllllllllllllllllllll Plaintiff - Appellee,

v.

Randy Allen Hentges,

lllllllllllllllllllll Defendant - Appellant.

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 Appeal from United States District Court 

for the Northern District of Iowa - Dubuque

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 Submitted: September 12, 2014

 Filed: June 22, 2015

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Before BYE, COLLOTON, and GRUENDER, Circuit Judges.

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COLLOTON, Circuit Judge.

Randy Allen Hentges appeals from the 132-month prison sentence imposed by

the district court after Hentges pleaded guilty to attempting to manufacture

methamphetamine near a school. Hentges argues that the district court erred in 1

The Honorable Linda. R. Reade, Chief Judge, United States District Court for

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the Northern District of Iowa.
determining that he was a career offender under the advisory guidelines, and that the

district court’s pronouncement of an alternative sentence is insufficient to justify the

sentence imposed. He also asserts that the district court denied him the right to

allocution at sentencing. We affirm.

Hentges pleaded guilty to attempt to manufacture methamphetamine near a

school, in violation of 21 U.S.C. §§ 841(b)(1)(C), 846, and 860. At sentencing, the

district court determined that Hentges was a career offender under the sentencing

guidelines, see USSG § 4B1.1, that he accepted responsibility for his offense, see id.

§ 3E1.1, and that the advisory sentencing range was 188 to 235 months’

imprisonment. The court then explained that even if Hentges were not a career

offender, in which case the advisory sentencing range would have been 92 to 115

months’ imprisonment, the court would have varied upward from the range pursuant

to 18 U.S.C. § 3553(a), due to the seriousness of Hentges’s criminal conduct and his

incorrigibility. Under either approach, the court declared, it would arrive at the same

sentence of 188 months’ imprisonment. The court then reduced the sentence to 132

months on other grounds not relevant here.

After comments from counsel, the court offered Hentges an opportunity to

speak. When Hentges was finished, the court said that it was “ready to impose the

sentence,” and announced its judgment that Hentges was sentenced to a term of 132

months’ imprisonment. Hentges appeals.

Hentges first argues that the district court erred in classifying him as a career

offender under USSG § 4B1.1, because he had not sustained two qualifying prior

convictions for a crime of violence or a controlled substance offense as required by

USSG § 4B1.1(a)(3). He admits one prior qualifying conviction for possession of

cocaine with intent to deliver, but disputes the district court’s determination that his

convictions for possession of a precursor chemical with intent to manufacture a

controlled substance and for attempted burglary in the third degree also qualify. The

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government responds that both of the prior convictions qualify, but that even if

Hentges is not a career offender, the district court’s alternative decision to vary

upward from the advisory guidelines is enough to sustain the judgment. Hentges

counters that the district court did not offer a sufficient justification for imposing the

alternative sentence.

We find it unnecessary to address whether Hentges qualifies as a career

offender, because the district court’s alternative decision to vary upward from the

advisory guideline range is sufficient to justify the sentence imposed. The court

explained that even if Hentges were not a career offender, the court would sentence

Hentges—before a reduction for providing substantial assistance—to a term of 188

months pursuant to § 3553(a), rather than within the advisory range of 92 to 115

months. In short, the court concluded that Hentges is “at high risk to recidivate and

he is incorrigible.” S. Tr. 16. The court cited Hentges’s extensive criminal history,

which resulted in 22 criminal history points under the guidelines—making him

“atypical” even for offenders who are placed in the highest criminal history category

under the guidelines with 13 or more points. The court observed that lenient

sentences in prior cases had not changed Hentges’s behavior, and that Hentges

performed “extremely poorly on correctional supervision.” “His probation, his

parole, are revoked consistently. And then, to top it off, when he doesn’t like what’s

going on, he just walks away.” The court referred to numerous escapes or absences

from custody in Hentges’s criminal history. Hentges also committed the instant drug

trafficking offense while under a criminal justice sentence, a fact that the court found

was “an additional indication of the seriousness of his criminal conduct and his

incorrigibility.” S. Tr. 10.

Hentges complains that the district court based the variance on a mistaken

finding that “[h]e has been involved with drugs as a drug dealer since age 21.” 

Hentges was convicted of possessing cocaine with intent to deliver at age 21,

possession of drug paraphernalia at age 25, and possession of a precursor chemical

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with intent to manufacture methamphetamine at age 28. The instant offense,

committed at age 31, was an attempt to manufacture methamphetamine near a school. 

We see no clear error or prejudice arising fromthe district court’s shorthand reference

to Hentges’s history with illegal drugs. He did sustain a conviction for “drug

dealing” at age 21 when he possessed cocaine with intent to deliver, and then he

committed two more offenses involving intent to manufacture methamphetamine

within the next decade. Manufacturing offenses commonly are labeled “drug

trafficking offenses,” e.g., USSG § 2L1.2, comment. (n.(1)(B)(iv)), and we do not

think the court’s use of the term “drug dealing” to summarize Hentges’s involvement

manifests a misunderstanding of the criminal history or a reason to believe that the

court would have imposed a lesser sentence after describing each drug offense more

precisely.

Hentges also challenges the district court’s reliance on his unusually large

number of criminal history points (22) as a basis for an upward variance. He

contends that data from the United States Sentencing Commission show a rate of

recidivism for offenders with more than 20 criminal history points that is no greater

than the rate for some offenders in Category VI with fewer points. See U.S.

Sentencing Comm’n, Measuring Recidivism: The Criminal History Computation of

the Federal Sentencing Guidelines 7 (2004). The data are not as convincing as

Hentges suggests. For 2003, offenders with 20 or more points recorded a recidivism

rate of just under 60 percent, a higher rate than for offenders with 13, 16, 17, 18, or

19 points. Id. That offenders with 14 or 15 points reoffended at a slightly higher rate

during that year does not make it unreasonable for the district court to correlate a

score above 20 with atypical incorrigibility. Our precedent clearly supports the

district court’s approach. E.g., United States v. Sayles, 754 F.3d 564, 568 (8th Cir.

2014); United States v. Foy, 617 F.3d 1029, 1036 (8th Cir. 2010).

The district court has considerable discretion in fashioning a sentence under

§ 3553(a) based on the unique characteristics of each offender. Even if Hentges’s

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prior felony convictions did not satisfy the definition of “controlled substance

offense” or “crime of violence” under the categorical and modified categorical

approachesthat must be applied, see generally Descamps v. United States, 133 S. Ct.

2276 (2013), the court was permitted to consider Hentges’s admitted conduct on

those occasions, along with his overall criminal history and response to supervision,

when applying § 3553(a). We conclude that there was no abuse of discretion.

Hentges also asserts that the district court denied him his right to allocution

under Federal Rule of Criminal Procedure 32(i) and the Due Process Clause of the

Fifth Amendment. He complains that the district court announced the sentence that

it would impose without first allowing Hentges to speak. Because Hentges failed to

object to this procedure at sentencing, we review for plain error. United States v.

Hoffman, 707 F.3d 929, 937 (8thCir. 2013). Although the district court did announce

its intention to impose a 132-month sentence before granting Hentges his right of

allocution, the court did invite Hentges to speak before the court imposed the

sentence. That procedure does not violate Rule 32(i) or the Constitution. United

States v. Boose, 403 F.3d 1016, 1017 (8th Cir. 2005) (per curiam).

The judgment of the district court is affirmed.

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