                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-3260
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                   Robert E. Smith

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                     Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                              Submitted: April 15, 2020
                                Filed: May 13, 2020
                                   [Unpublished]
                                   ____________

Before KELLY, WOLLMAN, and STRAS, Circuit Judges.
                          ____________

PER CURIAM.

      Robert E. Smith pleaded guilty to conspiracy to possess with intent to distribute
controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846,
and possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(B). The district court1 sentenced Smith to 84 months’ imprisonment
after determining that his total offense level was 25, that his criminal history category
was IV, and that his advisory sentencing range under the U.S. Sentencing Guidelines
was 84 to 105 months’ imprisonment.

       Smith challenges the district court’s calculation of his criminal history score.
Because criminal history points are only assigned to sentences for “conduct not part
of the instant offense,” U.S.S.G. § 4A1.2(a)(1), Smith contends that he should not
have been assessed one criminal history point for his 2016 Missouri sentence for
possession of heroin. Without that point, his criminal history category would have
been III and his advisory sentencing range would have been 70 to 87 months’
imprisonment.

       We conclude that the district court did not clearly err in finding that the
conduct underlying Smith’s 2016 conviction was not part of the instant federal
offense. See United States v. Pinkin, 675 F.3d 1088, 1091 (8th Cir. 2012) (standard
of review). Although in both cases Smith purchased from the same supplier and
possessed heroin in St. Louis, Missouri, the state and federal offenses “resulted from
different law enforcement investigations, were prosecuted by different sovereigns,
and depended on proof of different facts.” See United States v. Pepper, 747 F.3d 520,
526 (8th Cir. 2014) (holding that the district court did not clearly err in concluding
that “[defendant’s] state offense was severable and distinct from the federal offense”
even though both were unlawful firearm possession offenses). Moreover, in response
to a question whether the court could consider any break in Smith’s drug activity to
determine his criminal history score, Smith conceded that a break had occurred
between his 2016 Missouri offense and his current offenses. See id. (holding that the
district court did not clearly err in part because two years had passed between the


      1
       The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.

                                          -2-
state and federal offenses). The district court thus did not clearly err in finding that
Smith’s 2016 possession conviction was a severable and distinct offense.

      The judgment is affirmed.
                      _____________________________




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