United States Court of Appeals
For the Eighth Circuit
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No. 17-1891
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Clayton Don Gregory, also known as Cracker
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: April 13, 2018
Filed: May 4, 2018
[Unpublished]
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Before COLLOTON, ARNOLD, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Clayton Don Gregory sold methamphetamine out of his home in Cedar Rapids,
Iowa. When police officers searched the residence pursuant to a warrant, they found
drugs and ammunition in the house itself and a partially disassembled .38-caliber
revolver along with more drugs and ammunition in the garage. Since Gregory was not
home during the search, the officers left behind a copy of the warrant. Gregory's
friend, Shelby Holland, stopped by the house, saw the state it was in, and telephoned
Gregory to tell him that it looked like the police had "raided" his place. The police put
the house under surveillance, but did not see Gregory return. Instead, seven days after
the search, an officer observed Gregory and Holland leaving her home together in her
vehicle. The officer asked a patrol car to stop Holland's vehicle but when the patrol
car's lights went on, Gregory told Holland not to pull over. Gregory replaced Holland
behind the wheel, slowed down, let her get out, and sped off, driving up to eighty-five
miles an hour on city streets that had a speed limit of twenty-five to thirty miles an
hour. Gregory did not elude the police and ultimately abandoned Holland's vehicle
to hide in a corn field. The police captured him there, recovering a 9mm pistol he had
tried to bury in the field and some ammunition he had left in Holland's vehicle.
Gregory pleaded guilty to distributing at least fifty grams of methamphetamine
and to being a felon who possessed a firearm and ammunition on the day of his arrest.
The district court,1 over Gregory's objections, enhanced his Guidelines range for the
drug offense under USSG §§ 2D1.1(b)(1) and 3C1.2 because he had possessed the
.38-caliber revolver and because he had recklessly created a substantial risk of death
or serious bodily injury to another person in the course of fleeing from police. In light
of those enhancements, the district court calculated that his advisory sentencing range
was 235 to 293 months of incarceration. The court then sentenced Gregory to 293
months in prison, followed by five years of supervised release. Gregory appeals from
that sentence, arguing the enhancements were improper. We affirm.
When a district court applies a sentencing enhancement under the Guidelines,
we normally review its conclusions of law de novo and its findings of fact for clear
error. See United States v. Lundstrom, 880 F.3d 423, 444 (8th Cir. 2018). We need
not resolve Gregory's assignments of error here, however, since the district court did
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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not base the sentence on his Guidelines range. Instead, it imposed what it termed "a
nonguideline sentence" based on its "very careful consideration of all of the factors
at 18 [U.S.C. §] 3553(a)." Any errors the court made in applying the enhancements
were therefore harmless. See Molina-Martínez v. United States, 136 S. Ct. 1338,
1346–47 (2016); United States v. White, 863 F.3d 1016, 1020–21 (8th Cir. 2017).
Gregory insists nevertheless that the district court did not impose a
"nonguideline" sentence since its sentence falls at the very top of his Guidelines range
under the contested enhancements. But whether a sentence is based on the Guidelines
does not turn on where it falls in relation to the calculated Guidelines range; it turns
on whether the court's explanation of its sentence shows that it "thought the sentence
it chose was appropriate irrespective of the Guidelines range." See United States v.
Espinoza, 831 F.3d 1096, 1097 (8th Cir. 2016). Here, the court was clear from the
outset that it did not "depend solely on the guidelines to arrive at 293 months," but
relied as well on the other § 3553(a) considerations and facts in the record that the
Guidelines had either ignored or undervalued. The court observed, for example, that
Gregory had scored "21 criminal history points, 8 points more than are necessary to
be the highest criminal category that we have in the federal system," making him "an
atypical criminal history VI." The court also observed that Gregory had "a number of
unscored convictions that receive no points under the guidelines," which indicated
to the court that his criminal-history category did "not adequately represent his prior
criminal behavior, nor the likelihood that he will recidivate." For those reasons and
for other relevant ones, the court said that Gregory's Guidelines range was "not
dispositive" of the sentence imposed. Any error in the Guidelines calculation was
therefore harmless.
Gregory also asserts that the district court cannot render its sentencing-
enhancement errors harmless simply by making a "blanket statement" that its sentence
is not based on its Guidelines calculations. See United States v. McGrew, 846 F.3d
277, 281–82 (8th Cir. 2017). That is true, but the court did not make a blanket
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statement here; rather, it developed and discussed reasons outside the Guidelines for
finding the sentence appropriate. Insofar as Gregory is maintaining that the court's
explanation of the sentence was insufficient, we review that assignment of error for
plain error since he did not object below to the adequacy of the explanation. See
White, 863 F.3d at 1021. We detect no error here, plain or otherwise.
Affirmed.
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