                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-2753
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                               Wesley Cortez Oatman

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                      for the District of Minnesota - St. Paul
                                  ____________

                               Submitted: April 3, 2017
                                 Filed: July 12, 2017
                                    [Unpublished]
                                   ____________

Before SMITH, Chief Judge, ARNOLD and SHEPHERD, Circuit Judges.
                             ____________

PER CURIAM.

      Wesley Oatman pleaded guilty to conspiracy to distribute heroin pursuant to
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. For sentencing purposes, Oatman was
deemed a career offender according to the United States Sentencing Guidelines
because he had at least three qualifying prior state felony convictions for controlled
substance offenses. See U.S.S.G. §§ 4B1.1(a) and 4B1.2(b). Using the sentencing
enhancement for career offenders, the district court1 determined that Oatman’s
Guidelines range was 262 to 327 months’ imprisonment. The court, however, varied
downward below the Guidelines range, imposing a 220-month sentence based on
Oatman’s offense and offender characteristics. Without the career-offender
enhancement, Oatman’s Guidelines range would have been 168 to 210 months.
Oatman appeals the application of the career-offender enhancement. He does not
challenge whether the enhancement applies to him specifically. Instead, he argues that
the Sentencing Commission exceeded its congressional mandate by including state
offenses in the types of crimes that trigger the enhancement. For the reasons stated
herein, we affirm Oatman’s sentence.

       “In 28 U.S.C. § 994(h), Congress directed the Sentencing Commission to
establish guidelines requiring a sentence at or near the statutory maximum for adult
defendants convicted of certain felonies, if the defendants have already been
convicted of two or more ‘offense[s] described in’ certain federal drug trafficking
statutes.” United States v. Consuegra, 22 F.3d 788, 789 (8th Cir. 1994) (alteration in
original) (quoting 28 U.S.C. § 994(h)(2)(B)). “The authority Congress has given the
Sentencing Commission to promulgate guidelines is extremely broad.” United States
v. Galloway, 976 F.2d 414, 419–20 (8th Cir. 1992) (en banc). “Broad as that
discretion may be, however, it must bow to the specific directives of Congress.”
United States v. LaBonte, 520 U.S. 751, 757 (1997). In formulating the career-
offender enhancement, the Commission promulgated U.S.S.G. § 4B1.2, which
includes both state and federal convictions as qualifying offenses. See Consuegra, 22
F.3d at 789. Oatman challenges § 4B1.2 as inconsistent with the Commission’s
congressional mandate. He argues that state drug convictions affect black men more
than similarly situated white men. Because Congress commanded the Commission to



      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.

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establish guidelines “entirely neutral as to . . . race”, see 28 U.S.C. § 994(d), Oatman
argues that the Commission exceeded its mandate by including state offenses.

      Oatman argues that 64 percent of defendants receiving the career-offender
enhancement are black, which is disproportionate to the general population. He
contends that because of the systemic issues of racism in the United States, the
enhancement, although “facially neutral,” fails to meet the statutory command of
being “entirely neutral.” He traces his argument from the origins of slavery in this
country, through the Civil War, to the poverty-stricken South Side of Chicago where
he grew up.

       Oatman does not claim that § 4B1.2 is unconstitutional. Instead, he argues that
the race-neutral language of § 994(d) demonstrates that Congress intended the
Guidelines to provide greater protections for racial minorities than the Constitution.
Cf. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424
(2006) (saying the Religious Freedom Restoration Act of 1993 provides greater
protections than the Free Exercise Clause of the First Amendment). Oatman asks this
court to invalidate § 4B1.2 under a disparate-impact analysis. Under his suggested
analysis, a Guidelines enhancement may pass constitutional muster under the Equal
Protection Clause, but fail a higher statutory standard imposed by § 994(d). He relies
on a number of statutory interpretation cases that have allowed causes of action for
claims based on the disparate impact of certain policies. See, e.g., Watson v. Fort
Worth Bank & Trust, 487 U.S. 977 (1988); Dothard v. Rawlinson, 433 U.S. 321
(1977). Oatman, however, misses that these disparate-impact cases arise under civil
rights statutes designed to remedy discrimination. See, e.g., Texas Dep’t of Hous. &
Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2525 (2015)
(expanding disparate-impact claims to include the Fair Housing Act among Title VII
and the Age Discrimination in Employment Act). Oatman does not present a cause
of action under a statute designed to remedy discrimination. He contends that the
Commission exceeded its authority by promulgating § 4B1.2 because it conflicts with

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the race-neutral statutory directive of § 994(d), which is a question of statutory
interpretation.2 See United States v. Williams, 53 F.3d 769, 772 (6th Cir. 1995) (using
“principles of statutory interpretation, deference, and logic” to analyze whether the
Guidelines fall within the mandate of § 994); see also Galloway, 976 F.2d at 420
(reviewing Guidelines provisions under the Chevron3 deference rubric).

        Although we review de novo whether the Commission acted within its statutory
authority in promulgating the Guidelines, we will uphold the Commission’s
interpretation of its mandate if it is reasonable. See Consuegra, 22 F.3d at 789. We
decline to address Oatman’s contention that § 4B1.2 is in conflict with § 994(d)’s
neutrality directive based on statistical disparities because Oatman did not make this
argument before the district court. We will not consider an argument raised for the
first time on appeal unless the appellant completes the difficult task of establishing
all four requirements for plain error:

      First, there must be an error or defect—some sort of “[d]eviation from
      a legal rule”—that has not been intentionally relinquished or abandoned,
      i.e., affirmatively waived, by the appellant. Second, the legal error must
      be clear or obvious, rather than subject to reasonable dispute. Third, the
      error must have affected the appellant’s substantial rights, which in the
      ordinary case means he must demonstrate that it “affected the outcome
      of the district court proceedings.” Fourth and finally, if the above three
      prongs are satisfied, the court of appeals has the discretion to remedy the
      error—discretion which ought to be exercised only if the error
      “‘seriously affect[s] the fairness, integrity or public reputation of judicial
      proceedings.’”


      2
        We declined to address an argument similar to Oatman’s in United States v.
Ybabez, in which the appellant argued that § 4B1.1 was not neutral with regard to
socioeconomic status, because the defendant failed to demonstrate a miscarriage of
justice. 919 F.2d 508, 510 (8th Cir. 1990).
      3
          See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

                                            -4-
Puckett v. United States, 556 U.S. 129, 135 (2009) (alterations in original) (citations
omitted) (quoting United States v. Olano, 507 U.S. 725, 732–36 (1993)).

       For this court to overturn Oatman’s sentence, he must show that the district
court erred. In addition, the identified error “must be clear or obvious, rather than
subject to reasonable dispute.” Id. None of Oatman’s statistical evidence regarding
state-based racial disparities was presented to the district court. Courts that have
addressed the inclusion of state convictions in the career-offender enhancement have
found the enhancement reasonable because “[t]o distinguish among [defendants] on
the basis of which jurisdiction happened to punish the past criminal behavior seems
(in the absence of some special circumstance) close to irrational.” United States v.
Beasley, 12 F.3d 280, 283 (1st Cir. 1993). Eliminating state convictions from the
career-offender enhancement would be “at least as likely to produce a crazy-quilt of
punishment results, as to connect similar punishments rationally to similar past
behavior.” Id. at 284. The Guidelines were intended to reduce disparity, not increase
it. See Mistretta v. United States, 488 U.S. 361, 365–66 (1989).

      We decline to find it to be clear or obvious error by the district court to apply
the Guidelines consistent with other federal courts when it has done so without
Oatman’s production of any legal authority to the contrary and without the benefit of
any of the evidence presented for the first time on appeal.

      Accordingly, we affirm.
                     ______________________________




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