United States Court of Appeals

For the Eighth Circuit

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No. 15-1744

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Ray Charles Conway

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: February 29, 2016

 Filed: March 15, 2016

[Unpublished]

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Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Ray Conway pleaded guilty to three counts of distribution of cocaine base

within 1,000 feet of a playground, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), and 860(a). The district court sentenced Conway to 188 months’ 1

imprisonment, the bottom of the advisory sentencing range set forth in the U.S.

Sentencing Guidelines Manual (Guidelines). Conway appeals, arguing that the

sentence imposed is substantively unreasonable. We affirm.

On three occasions from March to April 2014, a confidential informant (CI)

purchased small quantities of cocaine base (crack cocaine) from Conway under the

direction of law enforcement officers. The sales yielded a total of 1.36 grams of

crack cocaine and occurred in Conway’s apartment, located within 1,000 feet of three

local playgrounds. During one of the controlled purchases, the CI observed a large

bag containing individually wrapped packages of crack cocaine. Following his arrest,

Conway admitted to selling crack cocaine to three or four individuals and to being

“more of a marijuana dealer.”

Conway’s presentence investigation report (PSR) calculated a base offense

level of 14 and a criminal history category of V. The PSR recommended that the

career-offender enhancement under Guidelines § 4B1.1 be applied because Conway

previously had been convicted of at least two felony controlled substance offenses. 

Specifically, the PSR identified three qualifying convictions: on March 25, 2004,

Conway was convicted of unlawful delivery of less than one gram of a substance

containing cocaine, in violation of Illinois law; on May 19, 2011, he was convicted

of possession of 24.3 grams of marijuana with intent to deliver, in violation of Iowa

law; and on November 26, 2011, he was convicted of possession of 15.3 ounces of

marijuana with intent to deliver, in violation of Iowa law. The career-offender

enhancement raised Conway’s offense level to 34 and his criminal history category

to VI. The PSR recommended a 3-level reduction for acceptance of responsibility,

resulting in a total offense level of 31, a criminal history category of VI, and an

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

1

the Northern District of Iowa.

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advisory sentencing range of 188 to 235 months’ imprisonment. The district court

adopted the PSR’s sentencing recommendations and imposed the above-described

sentence.

At sentencing, Conway requested a downward departure and a variance from

the bottom of the Guidelines range. In denying both requests, the district court stated

that it had considered the factors listed in 18 U.S.C. § 3553(a). In particular, the court

considered Conway’s educational, substance abuse, mental health, and medical

problems, as well as his history of resistance to drug treatment, noncompliance with

state supervision, and repeated drug offenses despite the state courts’ leniency. In

weighing the § 3553(a) factors, the court stated, 

When I look at all the factors, not just one, but all the factors . . . , I find

no basis for a variance. At first blush, with an increase in offense level

from 14 to 34 for a career offender, plus going up 1 criminal history

category, it seems that . . . the advisory guidelines could be out of line,

but they’re not.

The court noted that the drug quantity set forth in the PSR did not consider Conway’s

admitted marijuana sales, that Conway was a recidivist despite having received

lenient sentences several times, and that his criminal history included prior

convictions for drug offenses as well as for domestic-abuse assault and child

endangerment. The court concluded that a 188-month sentence was “sufficient, but

not greater than necessary to achieve the goals of sentencing.”

We review the substantive reasonableness of a district court’s sentence for

abuse of discretion. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en

banc). “A district court abuses its discretion when it (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.’” Id. (quoting United

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States v. Kane, 552 F.3d 748, 752 (8th Cir. 2009)). Our review is “narrow and

deferential,” and “it will be the unusual case when we reverse a district court

sentence—whether within, above, or below the applicable Guidelines range—as

substantively unreasonable.” Id. at 464 (quoting United States v. Gardellini, 545 F.3d

1089, 1090 (D.C. Cir. 2008)). “If the defendant’s sentence is within the Guidelines

range, then we ‘may, but [are] not required to, apply a presumption of

reasonableness.’” Id. at 461 (alteration in original) (quoting Gall v. United States,

552 U.S. 38, 51 (2007)). Conway concedes that the district court weighed all of the

relevant factors.

Conway argues that we should not apply a presumption of reasonableness to

hiswithin-Guidelines sentence because the career-offender enhancement derives from

a Congressional mandate, see 28 U.S.C. § 994(h), rather than from the Sentencing

Commission’s empirical research. As Conway concedes, however, we rejected a

similar argument in United States v. Coleman, 635 F.3d 380, 382 (8th Cir. 2011), a

decision that we are bound by, notwithstandingConway’s argument that Coleman did

not address seemingly contrary language in Kimbrough v. United States, 552 U.S. 85,

109-10 (2007). Thus, we presume the sentence imposed by the district court is

reasonable, and the burden falls on Conway to rebut that presumption.

Conway argues that the district court committed a clear error of judgment in

weighing the § 3553(a) factors. In particular, Conway contends that his sentence is

greater than necessary to meet the sentencing goals listed in § 3553(a). He claims

that his sentence is greater than necessary to reflect the seriousness of his offense, that

the career-offender enhancement increases hissentence more than isreasonable given

the relatively small drug quantities involved in his prior convictions, and that the

district court did not give due consideration to his history of substance abuse and

other mitigating factors. As set forth above, however, the district court took into

account all of the relevant factors and exercised its discretion to give more weight to

some factors than to others. See United States v. Farmer, 647 F.3d 1175, 1179 (8th

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Cir. 2011) (“Simply because the district court weighed relevant factors . . . more

heavily than [the defendant] would prefer does not mean the district court abused its

discretion.”). The district court did not commit a clear error of judgment in weighing

the sentencing factors, and Conway has failed to rebut the presumption that his

sentence was reasonable.

The sentence is affirmed.

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