Opinion
No. 19-3114
07-29-2020
United States of America Plaintiff - Appellee v. Kevin Ray Smith Defendant - Appellant
Appeal from United States District Court for the Southern District of Iowa - Des Moines [Unpublished] Before KELLY, WOLLMAN, and STRAS, Circuit Judges. PER CURIAM.
Kevin Ray Smith pleaded guilty to conspiring to distribute a mixture or substance containing methamphetamine. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 846. Based on two prior drug convictions, the district court concluded that he was a career offender. See U.S.S.G. § 4B1.1. On appeal, Smith claims that considering his prior convictions violated the Double Jeopardy Clause and gave rise to a substantively unreasonable sentence. We affirm.
The Honorable John A. Jarvey, Chief Judge, United States District Court for the Southern District of Iowa. --------
We make short work of Smith's double-jeopardy argument. As we have long held, giving "habitual offenders" a longer sentence based on their past crimes "do[es] not subject [them] to a second conviction or punishment for [their] prior offenses." United States v. Thomas, 895 F.2d 1198, 1201 (8th Cir. 1990); accord Witte v. United States, 515 U.S. 389, 400 (1995); see U.S. Const. amend. V, cl. 2. Rather, it is a permissible recidivism-based "aggravating factor" for their current offense. Thomas, 895 F.2d at 1201; see Witte, 515 U.S. at 400 (describing "the latest crime" as "an aggravated offense because a repetitive one" (citation omitted)).
It was also reasonable for the district court to rely on Smith's career-offender status when it gave him a below-Guidelines-range sentence of 160 months in prison. See United States v. Scott, 818 F.3d 424, 435-36 (8th Cir. 2016); see also United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (reviewing a substantive-reasonableness challenge for an abuse of discretion). Even if he believes that it was "unfair[]" to rely on his prior convictions, there was no error in doing so. See United States v. Barron, 557 F.3d 866, 870-71 (8th Cir. 2009). Nor was it an abuse of discretion for the court, after granting a substantial departure from the recommended range of 262 to 327 months in prison, see U.S.S.G. § 5K1.1, to decline to vary downward even further. Cf. United States v. Zauner, 688 F.3d 426, 429 (8th Cir. 2012) (stating that a district court rarely abuses its discretion when it varies downward, but not as far as the defendant would like).
We accordingly affirm the judgment of the district court.