United States Court of Appeals
For the Eighth Circuit
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No. 20-3152
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United States of America
Plaintiff - Appellee
v.
Marion Boone Wise, III
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: September 21, 2021
Filed: November 5, 2021
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Before SHEPHERD, WOLLMAN, and KOBES, Circuit Judges.
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SHEPHERD, Circuit Judge.
Marion Boone Wise, III pled guilty to conspiracy to distribute more than 100
grams of a mixture or substance containing heroin, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B)(i), and 846, and the district court1 sentenced Wise to 300
1
The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
months imprisonment. Wise now appeals, and having jurisdiction pursuant to 28
U.S.C. § 1291, we affirm.
I.
For approximately a year, the Drug Enforcement Administration (DEA), with
the assistance of local law enforcement agencies, investigated heroin distribution in
Northwest Arkansas. Investigators identified Wise as a heroin distributor in the area
and utilized a confidential source to purchase heroin from Wise on two occasions.
This confidential source also purchased heroin from Wise’s co-conspirator and
co-defendant Sherry Finn on four occasions. On July 17, 2019, the confidential
source alerted DEA agents to a possible overdose victim at Finn’s residence. Agents
responded to Finn’s residence and discovered a deceased male in her bedroom. An
autopsy later revealed that the victim died from a heroin and methamphetamine
overdose. Finn was arrested and, in a post-Miranda2 interview, stated the victim
used heroin that Finn had purchased from Wise. Finn further explained that when
she purchased the heroin from Wise, he warned her that it was “strong stuff.”
Also on July 17, agents executed a search warrant at Wise’s residence. Agents
seized 32.7 grams of “black tar” heroin, 26 grams of “China white” heroin, .8 grams
of marijuana, 1.6 grams of methamphetamine, and $7,111 in cash. Agents also
found two young children living there. During a post-Miranda interview with
agents, Wise stated that he purchased heroin approximately every one to two days
and distributed that heroin to approximately eight individuals. Wise admitted to
distributing heroin to all seven named co-conspirators, including Finn. Wise also
told agents about an incident in which a woman visited his residence, purchased
“China white” heroin, and after using that heroin, began seizing and lost
consciousness. Although the woman ultimately regained consciousness, it was upon
Wise’s advice that those at the residence chose not to call 911. This occurred on the
same day as (and prior to) Finn’s heroin purchase from Wise—heroin that he warned
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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contained “strong stuff” and resulted in a death. Wise ultimately pled guilty to
conspiracy to distribute more than 100 grams of a mixture or substance containing
heroin.
At sentencing and after applying a three-level reduction for acceptance of
responsibility, the district court calculated Wise’s adjusted offense level as 31 and
applied a criminal history category of VI, resulting in a Guidelines range of 188 to
235 months imprisonment. After analyzing the 18 U.S.C. § 3553(a) factors, the
district court explained that the Guidelines range was inadequate and varied upward,
sentencing Wise to 300 months imprisonment. 3
II.
On appeal, Wise contends both that his 300-month sentence is procedurally
flawed (because the district court relied on clearly erroneous facts) and substantively
unreasonable. “Our analysis is performed in two steps: ‘first, [we review] for
significant procedural error; and if there is none, for substantive reasonableness.’”
United States v. Clark, 998 F.3d 363, 367 (8th Cir. 2021) (alteration in original)
(citation omitted). “‘Procedural error’ includes ‘failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence—including an explanation for
any deviation from the Guidelines range.’” United States v. Feemster, 572 F.3d 455,
461 (8th Cir. 2009) (en banc) (citation omitted). At sentencing, Wise failed to object
to the district court’s alleged procedural error, and we therefore apply a plain-error
standard of review. See United States v. Brown, 992 F.3d 665, 672 (8th Cir. 2021).
“Under plain error review, the defendant must show: (1) an error; (2) that is plain;
and (3) that affects substantial rights.” Id. (citation omitted).
3
The government moved for an upward departure pursuant to USSG § 5K2.1
to reflect the overdose victim’s death. The district court declined to grant the
government’s motion, instead acknowledging the victim’s death in its § 3553(a)
analysis.
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At sentencing, the district court mentioned that some of the heroin sold by
Finn contained fentanyl and discussed the ever-present possibility that heroin can be
laced with fentanyl. Wise highlights the district court’s brief discussion of fentanyl
and argues that this discussion reflects the district court’s reliance on facts not in
evidence. See Feemster, 572 F.3d at 461 (procedural error occurs where the district
court “select[s] a sentence based on clearly erroneous facts”). We disagree. While
Wise is correct that the government presented no evidence that the heroin he
distributed contained fentanyl, the district court did not “select[ ] a sentence” based
on the presence of fentanyl. Id. Instead, when read in the context of the entire
sentencing hearing, it is clear the district court was merely highlighting heroin’s
dangerous nature and Wise’s awareness of that dangerous nature, as exhibited in part
by the woman who seized and lost consciousness after using heroin purchased from
Wise and Wise’s warning to Finn (after the woman lost consciousness) that the
heroin he was distributing was “strong stuff.” Therefore, Wise fails to show that the
district court erred.
Even assuming the district court did procedurally err, any such error was
harmless. “An error is harmless only if we are convinced that the error did not affect
the district court’s sentencing conclusion.” United States v. Moody, 930 F.3d 991,
993 (8th Cir. 2019) (citation omitted). It is the government’s burden to show that
the sentence would have been the same despite the district court’s error. Id. Here,
the government explained that the district court found a 300-month sentence
appropriate not because it believed fentanyl was present but because heroin
distributed by Wise led to someone’s death and Wise has an extensive criminal
history, with approximately 1 conviction per year since he turned 21 years old. Wise
argues only that the district court erred by considering the presence of fentanyl when
choosing a sentence and does not explain if or why his sentence would be lower if
the district court had not mentioned fentanyl. We can see nothing in the record to
suggest that the district court did rely on fentanyl’s presence when selecting a
sentence, and ultimately, we are convinced Wise’s sentence would have been the
same even without the district court’s alleged error. See id.
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Finding no procedural error, we now consider the substantive reasonableness
of Wise’s sentence, applying an abuse-of-discretion standard of review. See United
States v. Godfrey, 863 F.3d 1088, 1099 (8th Cir. 2017). “A district court abuses its
discretion when it (1) fails to consider a relevant factor that should have received
significant weight; (2) gives significant weight to an improper or irrelevant factor;
or (3) considers only the appropriate factors but in weighing those factors commits
a clear error of judgment.” Id. (citation omitted). “This is such a narrow and
deferential standard that ‘it will be the unusual case when we reverse a district court
sentence—whether within, above, or below the applicable Guidelines range—as
substantively unreasonable.’” United States v. Adams, 12 F.4th 883, 887 (8th Cir.
2021) (citation omitted). Wise contends that the district court incorrectly weighed
the factors set forth by 18 U.S.C. § 3553(a), specifically arguing that the district
court attributed inadequate weight to mitigating factors such as his family history
and addiction.
The district court engaged in a thoughtful and thorough analysis of the
§ 3553(a) factors, noting Wise’s role as the primary distributor in a large distribution
ring; the death caused by heroin purchased from Wise; the presence of two young
children in Wise’s residence; Wise’s failure to call 911 when a woman lost
consciousness at his residence after using heroin purchased from him; the fact that
Wise kept Narcan (a prescription medication used to treat narcotic overdoses) at his
residence, which the district court found indicative of Wise’s awareness that heroin
is lethal; Wise’s ten prior drug convictions and the fact that when Wise was
convicted for the current offense, he was on parole for a separate drug conviction;
Wise’s traumatic childhood; the fact that Wise’s conduct was nonviolent and did not
involve firearms; Wise’s significant history of substance abuse; and Wise’s genuine
remorse. The district court ultimately found that the aggravating facts and
circumstances outweighed the mitigating facts and circumstances, the Guidelines
range was inadequate, and a significant upward variance was appropriate. The
district court has wide latitude to assign greater weight to some factors than others,
and it did not abuse its discretion simply because it weighed the relevant factors
differently than Wise would have preferred. See United States v. Nguyen, 829 F.3d
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907, 926 (8th Cir. 2016). Therefore, we find Wise’s sentence substantively
reasonable.
III.
Finding no error, we affirm.
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