United States Court of Appeals

For the Eighth Circuit

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No. 14-2397

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Corey Damon Keys

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Davenport

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 Submitted: April 17, 2015

Filed: May 11, 2015

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Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.

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RILEY, Chief Judge.

Corey Keys pled guilty to one count of conspiracy to distribute a substance

containing cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. The

district court1

 determined Keys was a career offender and sentenced him to 151

1

The Honorable John A. Jarvey, Chief Judge, United States District Court for

the Southern District of Iowa.
months imprisonment. Keys appeals his sentence, claiming he does not qualify as a

career offender and his sentence is substantively unreasonable. With appellate

jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

Keys is a repeat drug trafficker with three prior Iowa state drug convictions. 

The first occurred in 2005, when state prosecutors convicted Keys of delivering

cocaine and possessing cocaine with intent to deliver stemming from events in April

and May of 2005. This conviction resulted in a suspended sentence of ten years. 

Second, Keys was convicted in 2008 of possessing cocaine with intent to deliver as

a result of events on February 27, 2008, and was sentenced to ten years imprisonment. 

Keys’s third drug conviction occurred in 2009, when he was convicted of delivering

cocaine in 2007 and 2008, and was sentenced to twenty years in prison. 

Keys was incarcerated at the Iowa Department of Corrections from September

22, 2008, until being paroled on April 30, 2012. Keys admits that, while incarcerated,

he was not directly involved in any drug trafficking or possession. Almost

immediately upon his release from prison, Keys resumed supplying cocaine to

numerous individuals, using the same accomplices and modus operandi as before his

imprisonment. After law enforcement conducted a series of controlled buys, a federal

grand jury indicted Keys, and Keys pled guilty to the charges in this case. 

Specifically, Keys admitted in a plea agreement the following:

Starting during or about March 6, 2012, and continuing to on or about

April 24, 2013, the defendant and other persons reached an agreement or

came to an understanding to distribute cocaine. The defendant

voluntarily and intentionally joined in the agreement or understanding

at some later time while it was still in effect.

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At sentencing, Keys objected to the application of United States Sentencing

Guidelines (U.S.S.G. or Guidelines) § 4B1.1(a), claiming he was not a career offender

because his 2008 and 2009 convictions were part of the same conspiracy for which

Keys was charged in this case. The district court rejected Keys’s claims and

determined he was a career offender. After calculating an advisory Guidelines range

of 151 to 188 months (level 29, category VI), the district court sentenced Keys to 151

months imprisonment. Keys appeals.

II. DISCUSSION

A. Career Offender Application

Keys first argues the district court erred in applying the career offender

provision because his convictions in 2008 and 2009 “were part of the relevant conduct

of the offense at bar and thus should be excluded from consideration as prior

convictions.”2

 “We review ‘prior sentence’ and ‘relevant conduct’ determinations for

clear error, ‘remembering that such a determination is fact-intensive and well within

the district court’s sentencing expertise and greater familiarity with the factual

record.’” United States v. Hernandez, 712 F.3d 407, 409 (8th Cir. 2013) (quoting

United States v. Boroughf, 649 F.3d 887, 890 (8th Cir. 2011)). We review “de novo

the district court’s interpretation and application of the Sentencing Guidelines.” 

United States v. Holmes, 751 F.3d 846, 852 (8th Cir. 2014). “Sentencing guideline

commentary is authoritative unless it violates the Constitution or is inconsistent with

federal law.” United States v. Walterman, 343 F.3d 938, 941 n.3 (8th Cir. 2003)

(citing Stinson v. United States, 508 U.S. 36, 37-38 (1993)).

2

“A defendant is a career offender if (1) the defendant was at least eighteen

years old at the time the defendant committed the instant offense of conviction; (2) the

instant offense of conviction is a felony that 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.” U.S.S.G.

§ 4B1.1(a).

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A prior felony conviction counts under the career offender provision if the

conviction is “counted separately under the provisions of § 4A1.1(a), (b), or (c)” from

the present conviction. U.S.S.G. § 4B1.2(c). Section 4A1.1 provides criminal history

point increases for each “prior sentence.” A “prior sentence means any sentence

previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea

of nolo contendere, for conduct not part of the instant offense.” Id. § 4A1.2(a)(1). 

“Conduct that is part of the instant offense means conduct that is relevant conduct to

the instant offense under the provisions of section 1B1.3.” Id. § 4A1.2, cmt. n.1. As

such, if a prior conviction is relevant conduct under U.S.S.G. § 1B1.3, it cannot count

as a prior conviction under the career offender provision. 

Keys acknowledges his 2005 conviction is not relevant conduct and counts as

a prior conviction under the career offender provision. Keys therefore qualifies as a

career offender under U.S.S.G. § 4B1.1(a) if either his 2008 conviction or his 2009

conviction counts against him under the Guidelines. If, on the other hand, Keys can

show his 2008 and 2009 convictions were relevant conduct to his present conspiracy

conviction, he would not qualify as a career offender and his criminal history would

have been over scored. Keys has failed to do so.

“‘Conduct underlying a prior conviction is not relevant to the instant offense

if the former conviction was a severable, distinct offense from the latter.’” Hernandez,

712 F.3d at 409 (quoting United States v. Weiland, 284 F.3d 878, 881 (8th Cir.

2002)). “Factors we have consistently applied in reviewing [relevant conduct]

determination[s] include ‘temporal and geographical proximity, common victims,

common scheme, charge in the indictment, and whether the prior conviction is used

to prove the instant offense.’” Id. (quoting United States v. Pinkin, 675 F.3d 1088,

1091 (8th Cir. 2012)); see also United States v. Pepper, 747 F.3d 520, 526 (8th Cir.

2014). While similarities do exist between Keys’s prior offenses and the acts

underlying his current conviction, the evidence convinces us the offenses are

severable and distinct. 

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Keys’s current offense occurred three and a half years after his most recent state

offense. The prior offenses and the current offense occurred in different cities and

involved different cocaine. “The convictions resulted from different law enforcement

investigations, were prosecuted by different sovereigns, and depended on proof of

different facts.” Pepper, 747 F.3d at 526. The federal indictment did not mention the

state offenses or the conduct underlying those convictions, and did not involve the

same time period as those offenses. Because the record does not show any continuity

or material overlap between Keys’s offenses, the district court did not clearly err in

finding Keys’s prior offenses were not relevant conduct to his present conspiracy

conviction.

The district court also correctly applied Application Note 8 to U.S.S.G. § 1B1.3

to preclude Keys’s previous convictions from being relevant conduct. Application

Note 8 provides: 

For the purposes of subsection (a)(2), offense conduct associated with a

sentence that was imposed prior to the acts or omissions constituting the instant

federal offense (the offense of conviction) is not considered as part of the same

course of conduct or common scheme or plan as the offense of conviction. 

U.S.S.G. § 1B1.3, cmt. n.8. The commentary provides an example that describes

Keys’s situation:

The defendant was convicted for the sale of cocaine and sentenced to state

prison. Immediately upon release from prison, he again sold cocaine to the

same person, using the same accomplices and modus operandi. The instant

federal offense (the offense of conviction) charges this latter sale. In this

example, the offense conduct relevant to the state prison sentence is considered

as prior criminal history, not as part of the same course of conduct or common

scheme or plan as the offense of conviction. The prior state prison sentence is

counted under Chapter Four (Criminal History and Criminal Livelihood).

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Id. Application Note 8 plainly provides that prior criminal conduct for which a

sentence was imposed before the conduct charged in the indictment is not relevant

conduct.

Applying Application Note 8 to Keys, his 2008 and 2009 convictions each

resulted in “a sentence that was imposed prior to the acts or omissions constituting the

instant federal offense” because the indictment and plea agreement specified a

conspiracy beginning on or about March 6, 2012. Id. Application Note 8 provides

that Keys’s 2008 and 2009 convictions are not relevant conduct to the present offense

and thus count under the career offender provision. The district court did not err,

clearly or otherwise, in applying the career offender provision.

B. Substantive Reasonableness

Keys also challenges the substantive reasonableness of his sentence, arguing the

district court “erred by refusing to vary downward from the sentencing guidelines

based on the career offender guideline’s racially disparate impact.” We review such

challenges for abuse of discretion. See United States v. Feemster, 572 F.3d 455, 461

(8th Cir. 2009) (en banc). “On review, sentences within the advisory Guidelines range

. . . are presumptively reasonable.” United States v. Solis-Bermudez, 501 F.3d 882,

884 (8th Cir. 2007). “‘A district court abuses its discretion and imposes an

unreasonable sentence when it fails to consider a relevant and significant factor, gives

significant weight to an irrelevant or improper factor, or considers the appropriate

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

States v. Robison, 759 F.3d 947, 950-51 (8th Cir. 2014) (quoting United States v.

Kreitinger, 576 F.3d 500, 503 (8th Cir. 2009)).

The district court considered Keys’s assertions and declined to vary from the

Guidelines based on a policy disagreement. The district court was not required to vary

for a policy issue and acted within its discretion when it did not. See United States v.

Coleman, 635 F.3d 380, 383 (8th Cir. 2011); United States v. Barron, 557 F.3d 866,

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871 (8th Cir. 2009). Keys does not allege the district court (1) failed to consider

relevant or significant factors, (2) considered irrelevant or improper factors, or (3)

committed clear error in weighing the factors. Keys has failed to show his sentence

was substantively unreasonable.

III. CONCLUSION

We affirm Keys’s sentence.

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