United States Court of Appeals

For the Eighth Circuit

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No. 17-1480

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Dennis Sharkey, II

lllllllllllllllllllllDefendant - Appellant

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No. 17-1917

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Jacob Burton

lllllllllllllllllllllDefendant - Appellant

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Appeals from United States District Court 

for the Northern District of Iowa - Dubuque

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Submitted: January 10, 2018

Filed: July 18, 2018

[Published]

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Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.

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PER CURIAM.

Dennis Sharkey and Jacob Burton distributed methamphetamine throughout

northern Iowa. They were charged with conspiracy to distribute methamphetamine

in violation of 21 U.S.C. § 841(a), and they both pled guilty. The district court

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sentenced Sharkey to 140 months imprisonment and Burton to 154 months

imprisonment. Both defendants appeal, citing errors with their sentences. We affirm.

I.

At some point in 2013, law enforcement discovered a methamphetaminedistribution operation near Dubuque, Iowa. After some investigation, Michael Bent

was identified as a primary distributor in the operation. The government proceeded

through the proper channels and obtained a wire tap for Bent’s phone. Bymonitoring

this wire tap, law enforcement discovered Sharkey and Burton were lower-level

distributors operating underBent. Both defendants introduced prospective customers

to Bent, and both sold various amounts of methamphetamine on a number of

occasions in furtherance of the scheme. The defendants were charged by indictment

in May 2016 and each ultimately pled guilty to a single charge of conspiracy to

distribute methamphetamine.

1The Honorable Leonard T. Strand, Chief Judge, United States District Court

for the Northern District of Iowa.

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In preparation for sentencing, the probation office prepared a presentence

investigation report (“PSR”) on each of the defendants. Sharkey’s PSR assigned him

a total offense level of 29 and a criminal history category of V. Burton’s noted that

he had a total offense level of 29 and a criminal history category of IV. As a result

of this information, the parties agreed that Sharkey’s advisory sentencing guideline

range was 140 to 175 months and Burton’s was 151 to 188 months. The court

sentenced Sharkey and Burton, respectively, to 140 and 154 months imprisonment.

Both defendants appeal, arguing that the district court imposed substantively

unreasonable sentences, and Burton asserts an additional claim of procedural error.

II.

We “first ensure that the district court committed no significant procedural

error[]such as failing to calculate (or improperly calculating) the Guidelines range.”

See Gall v. United States, 552 U.S. 38, 51 (2007). We then review the substantive

reasonableness of the defendants’ sentences for abuse of discretion. United States v.

Phelps, 536 F.3d 862, 869 (8th Cir. 2008). “[S]ubstantive appellate review in

sentencing casesis narrow and deferential . . . , [and] it will be the unusual case when

we reverse a district courtsentence—whether within, above, or below the applicable

Guidelines range—as substantively unreasonable.” United States v. Feemster, 572

F.3d 455, 464 (8th Cir. 2009) (en banc) (internal quotation marks omitted). On

substantive review, an abuse of discretion occurs if the district court “(1) fails to

consider a relevant factor that should have received significant weight; (2) gives

significant weight to an improper or irrelevant factor; or (3) considers only the

appropriate factors but in weighing those factors commits a clear error of judgment.”

United States v. Pickar, 666 F.3d 1167, 1169 (8th Cir. 2012) (internal quotation

marks omitted). A within-guideline sentence may be accorded a presumption of

reasonableness on appeal, but “[t]his presumption . . . may be rebutted by reference

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to the statutory sentencing factors found in 18 U.S.C. § 3553(a).” United States v.

Battiest, 553 F.3d 1132, 1136 (8th Cir. 2009) (internal quotation marks omitted).

A.

Sharkey contends that his 140-month sentence is substantively unreasonable.

We begin from a presumption of reasonableness given that his sentence is at the very

bottom of the applicable guideline range. See United States v. Williams, 599 F.3d

831, 834 (8th Cir. 2010). The only means by which Sharkey attempts to overcome

this presumption is his assertion that the district court considered an improper factor

in arriving at his sentence because the court mentioned that Sharkey introduced other

“customers” to Bent. This was error, Sharkey asserts, because the only two

“customers” he introduced to Bent were a confidential informant and an undercover

police officer. We are aware of no authority stating that a district court cannot

consider an informant and undercover officer as customers for the purposes of

discussing a defendant’s role in a criminal enterprise. This argument also bypasses

entirely the fact that Sharkey undoubtedly believed these individuals were genuine

customers at the time of the introductions. The district court did not abuse its

discretion in sentencing Sharkey to 140 months. Cf. United States v. LeGrand, 468

F.3d 1077, 1079 (8th Cir. 2006) (affirming defendant’s conviction and sentence for

conspiracy to distribute methamphetamine where only three drug transactions were

made with undercover officer). 

B.

For his part, Burton argues that the court committed procedural error in

calculating his guidelines range by rejecting his argument that he was entitled to a

two-level mitigating-role reduction. United States v. Hunt, 840 F.3d 554, 557 (8th

Cir. 2016) (per curiam) (“Whether a defendant played a minor role is a question of

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fact, reviewed for clear error.” (internal quotation marks omitted)). Under USSG

§ 3B1.2(b), a defendant is entitled to a two-level decrease if he “was a minor

participant in any criminal activity.” By its terms, this deduction is available where

the defendant’s role “makes him substantially less culpable than the average

participant in the criminal activity.” Id. § 3B1.2, comment. (n.3). The defendant has

the burden of proving that “he or she is [a] minor participant by comparison with

other participants and by comparison with the offense for which he or she was held

accountable.” United States v. Bradley, 643 F.3d 1121, 1129 (8th Cir. 2011)

(alteration in original) (internal quotation marks omitted). Burton attempts to meet

this burden by asserting that he was only involved in the conspiracy for five months

and that one of his primary functions in the scheme was to merely deliver drugs

between Bent and his customers. Burton fails to acknowledge, however, that during

thisfive-month period, he distributed at least 113 grams of methamphetamine, which

averages out to nearly one ounce per month. Burton therefore fails to show he was

a “minor participant . . . by comparison with the offense for which he or she was held

accountable.” Id. Additionally, “this court has consistently rejected the argument

that a distributor of controlled substances deserves a minor-role reduction simply

because ofthe presence of a larger-scale upstreamdistributor.” Id.(internal quotation

marks omitted). The district court did not clearly err in denying the mitigating-role

adjustment, and we discern no other procedural errors in Burton’s sentencing.

Turning to his argument that the court imposed a substantively unreasonable

sentence,Burton contendsthat the court gave significantweight to an improper factor

by “significantly overvalu[ing] the nature of the burglary offenses in Burton’s

criminal history.” In discussing Burton’s criminal history as part of its consideration

of the 18 U.S.C. § 3553(a) factors, the district court stated:

He started—he had an assault conviction at the age of 20. Domestic

abuse assault at the age of 24. Numeroustheft and burglary convictions.

And I consider burglary—I’mnot talking about any statutory definitions

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here, but I think burglary is an unbelievably violent and personal

offense. I have never been the victim of a burglary, but if my house was

burglarized, whether I was present or not, I just think that’s an

unbelievably serious crime to commit against a victim, and he’s got

numerous burglary convictions.

Citing Mathis v. United States, 136 S. Ct. 2243 (2016), Burton argues this discussion

of his prior burglaries was in error because the Supreme Court held that Iowa

burglary is not a “crime of violence.” This argument reads too much into Mathis.

That case decided merely that the definition of “burglary” under Iowa law was

broader than that of the generic offense. Mathis, 136 S. Ct. at 2257. As a result, the

Court held that a conviction for Iowa burglary could not serve as a predicate felony

for the purposes of the Armed Career Criminal Act (ACCA). Id. Here, Burton was

not sentenced under the ACCA, so Mathis is largely inapposite. Moreover, in

arriving at a particular sentence, the district court isrequired to consider a defendant’s

criminal history. See § 3553(a)(1). Given this requirement, the district court did not

abuse its discretion in expressing its views on the nature of Burton’s prior

convictions. Cf. United States v. Foy, 617 F.3d 1029, 1036-38 (8th Cir. 2010)

(affirming sentencing court’s decision to vary upward from top of the guidelines

range because of district court’s thorough discussion of defendant’s criminal history).

Burton’sthird argument isthat the court erred by not varying downward based

on a policy disagreement with the guidelines range imposed in cases involving

methamphetamine. See United States v. Hayes, 948 F. Supp. 2d 1009, 1015-18 (N.D.

Iowa 2013) (collecting cases and expressing disagreement with the sentencesimposed

in methamphetamine cases). As Burton notes, we have stated that “the Supreme

Court held it was not an abuse of discretion for a district court to vary from the

Guidelines based on its policy disagreement concerning the disparity between crack

and powder cocaine sentences.” Battiest, 553 F.3d at 1137 (citing Kimbrough v.

United States, 552 U.S. 85, 110-11 (2007)). But Burton fails to recognize the very

next sentence from Battiest, in which we state “that Kimbrough did not mandate that

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district courts considerthe crack/powder sentencing disparity and [sentencing courts]

do not act [] unreasonably, abuse[] [their] discretion, or otherwise commit[] error if

they do not.” 553 F.3d at 1137 (first alteration added) (internal quotation marks

omitted). Here, the court expressly considered Burton’s policy argument and rejected

it. This was within its discretion. See Phelps, 536 F.3d at 869 (“The district court

considered Phelps’s arguments and found them unpersuasive. It did not abuse its

discretion . . . .”).

Finally, Burton argues that the court erred by not varying downward because

of his health issues and drug addiction. Specifically, Burton asserts that he has a

history of heart and dental problems, and he claims that his criminal activity is

directly tied to his longstanding use of methamphetamine. The district court

expressly stated that “[t]here are definitely mitigating factors here” and that it was

“certainly taking those into consideration.” It further noted that Burton presented a

strong argument for mitigation with reference to, among other things, his “mental

health history” and the “huge problem he has had with methamphetamine.”

Ultimately, however,the court determined thatBurton was not entitled to a downward

variance due to the presence of a number of different aggravating factors, such as his

extensive criminal history and his recent action in exposing the identities of

confidential cooperating witnesses. Given that the court isfree to assign some factors

more weight than others, no abuse of discretion occurred here. See Pickar, 666 F.3d

at 1169 (“The court’s decision to assign greater weight to [the defendant’s] criminal

history and the nature of his offense than to mitigating personal factors was well

within its wide sentencing latitude.”).

The district court did not procedurally err, and Burton has failed to rebut the

presumption of reasonableness attached to his within-guidelines sentence.

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III.

For the reasons stated above, we affirm the district court in both of these cases.

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