United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1709
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District of
* South Dakota.
Bernard J. Drapeau, Jr., *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 13, 2006
Filed: December 26, 2006
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Before BYE, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Bernard J. Drapeau, Jr., appeals his sentence imposed by the district court1 after
remand. Drapeau argues the 262-month sentence imposed is unreasonable because
the district court (1) did not account for the "guideline disparity" created by the
Bureau of Prison's (BOP) interpretation of good conduct credit under 18 U.S.C.
§ 3624(b); (2) did not vary downward from the U.S. Sentencing Guidelines
(Guidelines) imprisonment range under 18 U.S.C. § 3553(a) despite his serious health
1
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
problems; and (3) improperly used a preponderance of the evidence standard in
determining judicial facts used to craft his sentence. We affirm.
We previously considered Drapeau's appeal of his conviction and 324-month
prison sentence for distributing a controlled substance and possessing a controlled
substance with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). See
United States v. Drapeau, 414 F.3d 869 (8th Cir. 2005), cert. denied, 126 S. Ct. 1090
(2006). We affirmed his conviction but remanded the case for resentencing in light
of the holding in United States v. Booker, 543 U.S. 220 (2005). Drapeau, 414 F.3d
at 879. On remand, the district court determined the advisory Guidelines
imprisonment range was 262 to 327 months and sentenced Drapeau “to the minimum
under the sentencing guideline range, 262 months of custody.”
Drapeau contends the sentencing table in the Guidelines is "calibrated on the
assumption that prisoners exhibiting good conduct would receive 15%, [or] 54 days
a year, good time credit off their sentences" but the BOP only credits 12.8%, or 47
days, a year in good-time credit. As a result, he argues the low end of his Guidelines
imprisonment range was 2.2% greater than what the Guidelines actually intended and
the “minimum” presumptively reasonable sentence is actually six months lower than
what the district court stated. As Drapeau did not raise this argument in the district
court, we review only for plain error. United States v. Robinson, 462 F.3d 824, 825
(8th Cir. 2006). We need not decide the import of the BOP's policy on Guideline
ranges since, even if the applicable sentence range were revised as Drapeau urges to
reflect the BOP's good time credit policy, Drapeau's sentence of 262 months would
still fall within this proposed guideline range and would be presumptively reasonable.
United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.), cert. denied, 126 S. Ct. 840
(2005); accord United States v. Rita, 177 F. App’x 357, 358 (4th Cir.) (unpublished
per curiam) (noting a sentence imposed within a properly calculated Guidelines range
is presumptively reasonable), cert. granted, 75 U.S.L.W. 3243 (U.S. Nov. 3, 2006)
(No. 06-5754). Thus, we find no plain error in the district court's application of the
guideline range.
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Drapeau also asserts the district court erred in not considering his health
problems when considering the factors set forth in 18 U.S.C. § 3553(a). We review
the reasonableness of a sentence for an abuse of discretion. United States v. Lee, 454
F.3d 836, 838 (8th Cir. 2006). Drapeau's sentence within the advisory Guideline
range is presumptively reasonable. To rebut this presumption, Drapeau "must show
that the district court failed to consider a relevant factor that should have received
significant weight, gave significant weight to an improper or irrelevant factor, or
otherwise committed a clear error of judgment." United States v. Davidson, 437 F.3d
737, 741 (8th Cir. 2006). At his resentencing, Drapeau stated his health was
deteriorating and since 1995 he had ruptured his appendix and undergone colon,
bladder, and hernia surgeries. He also informed the court he had an existing hernia,
suffered from diabetes, high blood pressure, and hepatitis and took several
medications. In response, the district court specifically referenced the text of
§ 3553(a)(2)(D) concerning the medical needs of a defendant and stated, "I would
hope that wherever he goes in the federal system he's being provided with proper
medical care." The court also reviewed the other factors listed in § 3553(a). We find
the district court did consider the relevant § 3553(a) factors and did not otherwise
commit a clear error of judgment in determining the sentence.
Finally, Drapeau contends the district court violated his due process rights in
imposing a sentence based on drug quantities beyond those found by the jury and
determined these higher quantities using a preponderance of the evidence standard of
proof. Because the standard of proof at sentencing is only a preponderance of the
evidence, United States v. Johnson, 450 F.3d 831, 833 (8th Cir. 2006), we find no
error. Accordingly, we affirm.
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