United States Court of Appeals
For the Eighth Circuit
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No. 16-4149
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Tony Ray Pledge
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: November 13, 2017
Filed: February 9, 2018
[Unpublished]
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Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges.
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PER CURIAM.
In 2015, Tony Ray Pledge pleaded guilty to unlawfully possessing a firearm
in violation of 18 U.S.C. § 922(g)(1). The United States Probation Office determined
that Pledge qualified for an enhanced sentenced under the Armed Career Criminal Act
(“ACCA”) due to prior drug convictions and a prior burglary conviction. With that
classification, Pledge was subject to an advisory sentencing guidelines range of 188
to 235 months and a mandatory minimum sentence of 15 years’ imprisonment. On
June 3, 2015, the district court1 sentenced Pledge to 188 months’ imprisonment.
Pledge appealed his sentence to this court, arguing that his prior conviction for
burglary did not qualify as a violent felony under the ACCA. In light of the Supreme
Court’s decision in Mathis v. United States, 136 S. Ct. 2243 (2016), which supported
Pledge’s position that the district court erred in relying on his burglary conviction to
classify him as an armed career criminal, we vacated Pledge’s sentence and remanded
the case for resentencing. See United States v. Pledge, 667 F. App’x 566, 566-67 (8th
Cir. 2016) (per curiam) (unpublished).
Shortly after Pledge’s original sentencing in 2015, but before his resentencing,
Pledge was convicted of contempt of court for violation of the terms and conditions
of his probation related to a 2013 conviction for driving while intoxicated. This
contempt conviction resulted in a ninety-day jail sentence. In light of these events,
the Probation Office added two additional points to Pledge’s total criminal history
score in the amended presentence investigation report (“PSR”) prepared for Pledge’s
resentencing. See U.S.S.G. § 4A1.1. After this adjustment, the amended PSR
recommended an offense level of 21, a criminal history category of V, and a
guidelines range of 70 to 87 months’ imprisonment.
Pledge objected to the reliance on the contempt conviction in the criminal
history calculation, claiming that because that conviction occurred after his initial
sentencing, it could not be included. Excluding the 2015 conviction, Pledge argued
that he should have a criminal history category of IV and a guidelines range of 57 to
71 months. The Government in turn argued that the amended PSR calculated
Pledge’s criminal history correctly because (1) the contempt conviction was not a new
conviction for sentencing purposes but rather part of the total sentence applied to the
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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criminal history scoring of the original 2013 conviction, and (2) the district court is
permitted to consider new convictions on resentencing. Moreover, the Government
asked the court to depart upward to criminal history category VI no matter how it
resolved Pledge’s underlying objection.
The district court determined that the PSR accurately calculated Pledge’s
offense level as 21 and his criminal history as category V, but it ultimately found that
the resulting guidelines range of 70 to 87 months was insufficient. The court
explained that “[w]hether or not Mr. Pledge were scored to be criminal history V or
criminal history IV, the Court’s decision would be exactly the same. This is
definitely a case where an upward departure to criminal history category VI is
appropriate, and it doesn’t matter where you start.” With an offense level of 21 and
a criminal history category of VI, Pledge’s guidelines range was 77 to 96 months.
Then, following a lengthy discussion of Pledge’s underrepresented criminal history,
the court noted that even if it made a mistake in the computation of Pledge’s criminal
history score or guidelines range, it “would give the very same sentence, and it would
be a variance at that point, computing and taking into account the guidelines, but
ultimately finding that the other 3553(a) factors weighed more heavily.” The court
sentenced Pledge to 96 months’ imprisonment.
On appeal, Pledge again objects to his criminal history determination and the
resulting guidelines range. “We review de novo the district court’s construction and
interpretation of the Sentencing Guidelines, but review the district court’s application
of the Guidelines to the facts only for clear error.” United States v. Charles, 209 F.3d
1088, 1089-90 (8th Cir. 2000). “When the guidelines are incorrectly applied, we
remand for resentencing unless the error was harmless, such as when the district court
would have imposed the same sentence absent the error.” United States v. Idriss, 436
F.3d 946, 951 (8th Cir. 2006). Here, the district court stated repeatedly that it would
impose a 96-month sentence whether the original calculation should have resulted in
criminal history category IV or V. It offered ample justification for that sentence.
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Thus, even assuming the court erred, the error was harmless. See United States v.
Pate, 854 F.3d 448, 453 (8th Cir. 2017) (“Any error in the classification of this prior
conviction was harmless because the district court expressly determined it would
have imposed the same sentence.”).
Accordingly, we affirm.
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