        United States Court of Appeals
                   For the Eighth Circuit
               ___________________________

                       No. 16-2890
               ___________________________

                    United States of America

               lllllllllllllllllllllPlaintiff - Appellee

                                  v.

Joseph Michael Evenson, also known as Joseph Anderson Evenson

             lllllllllllllllllllllDefendant - Appellant
               ___________________________

                       No. 16-3268
               ___________________________

                    United States of America

               lllllllllllllllllllllPlaintiff - Appellee

                                  v.

                 Miguel Angel Torres Alvarez

             lllllllllllllllllllllDefendant - Appellant
                             ____________

           Appeals from United States District Court
         for the Southern District of Iowa - Des Moines
                         ____________
                             Submitted: April 3, 2017
                               Filed: July 28, 2017
                                  ____________

Before WOLLMAN, LOKEN, and RILEY, Circuit Judges.
                         ____________

RILEY, Circuit Judge.

       These are the consolidated sentencing appeals of two participants in
overlapping drug-distribution conspiracies. Joseph Evenson argues the district court1
should not have treated him as a career offender under the advisory United States
Sentencing Guidelines (Guidelines or U.S.S.G.). Miguel Torres Alvarez argues the
district court should have sentenced him below what the Guidelines recommended,
because of his difficult childhood and mental-health problems. With appellate
jurisdiction under 28 U.S.C. § 1291, we affirm both sentences.

I.      EVENSON
        Joseph Evenson was caught receiving about 167 grams of methamphetamine
from someone under police surveillance. He pled guilty to conspiring to distribute
a controlled substance. See 21 U.S.C. §§ 841(a)(1), 846. Evenson’s presentence
investigation report (PSR) recommended sentencing him as a “career offender” under
Guidelines § 4B1.1(a)(3), which required that he “ha[d] at least two prior felony
convictions of either a crime of violence or a controlled substance offense.” Evenson
initially objected to that determination. The point turned on whether Evenson’s
convictions for third-degree burglary and attempted burglary under Iowa law, see
Iowa Code §§ 713.1, .2, .6A, .6B, counted as crimes of violence.2

      1
      The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
      2
       Evenson also had an Iowa conviction for assault on a jailer, see Iowa Code
§ 708.3A(3), which he no longer disputes was a crime of violence.

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      Before sentencing, Evenson reached an agreement with the government. If the
government recommended reducing Evenson’s offense level by two levels for playing
only a minor role in the crime, see U.S.S.G. § 3B1.2(b), and if the district court
accepted the recommendation, then Evenson “w[ould] withdraw his objections to the
career offender enhancement.” At Evenson’s sentencing hearing, the district court
confirmed the parties’ resolution of the career-offender issue. Evenson’s lawyer
responded: “In light of the government’s agreement to recommend a downward
adjustment reduction for mitigating role, we will withdraw our objections to the
application of the career offender guideline.” The district court adopted the reduced
offense level and sentenced Evenson to the low end of the resulting Guidelines range,
151 months in prison.

      Two weeks later, the Supreme Court decided Mathis v. United States, holding
an Iowa burglary conviction does not count as a “violent felony” conviction for
purposes of triggering the Armed Career Criminal Act’s fifteen-year mandatory
minimum sentence. See Mathis v. United States, 579 U.S. ___, ___, 136 S. Ct. 2243,
2257 (2016) (applying 18 U.S.C. § 924(e)). Because we generally treat “violent
felonies” under that statute as interchangeable with “crimes of violence” under the
Guidelines,3 see, e.g., United States v. Boose, 739 F.3d 1185, 1187 n.1 (8th Cir.
2014), Evenson argues it “follows inexorably” from Mathis that sentencing him as a
career offender was a mistake. In Evenson’s view, we should remand for
resentencing under Federal Rule of Criminal Procedure 52(b), which authorizes us


      3
        Neither Evenson nor the government mentions the so-called “residual clause”
of Guidelines § 4B1.2(a)(2) (as in effect at the time of sentencing in May 2016, see
U.S.S.G. § 1B1.11(a)), which extended the definition of “crime of violence” to
include crimes that “otherwise involve[] conduct that presents a serious potential risk
of physical injury to another”—and which, since about a year earlier, had no valid
statutory analogue, see Johnson v. United States, 576 U.S. ___, ___, 135 S. Ct. 2551,
2563 (2015). We will therefore ignore it as well.

                                         -3-
to correct “plain error that affects substantial rights . . . even though it was not
brought to the [district] court’s attention.” See generally Johnson v. United States,
520 U.S. 461, 466-70 (1997).

       Plain error relief is not available in cases of waiver, because waiving an issue
“extinguish[es]” any potential error and leaves nothing to correct. United States v.
Olano, 507 U.S. 725, 732-33 (1993). This is such a case. By raising and then
withdrawing an objection to classifying his burglary convictions as crimes of
violence, Evenson demonstrated “the ‘intentional relinquishment or abandonment
of’” his right to argue the point. United States v. Harrison, 393 F.3d 805, 806 (8th
Cir. 2005) (quoting Olano, 507 U.S. at 733); accord, e.g., United States v. Thompson,
289 F.3d 524, 526 (8th Cir. 2002). That is, he waived it.

       We recognize that “[w]aiver is different from forfeiture.” Olano, 507 U.S. at
733. But Evenson did not simply “fail[] to make the timely assertion of [the] right.”
Id. The two Sixth Circuit decisions Evenson cites, United States v. Clements, 142 F.
App’x 223 (6th Cir. 2005), and United States v. Stines, 313 F.3d 912 (6th Cir. 2002),
though superficially similar to this case, are no basis for us to hold otherwise. Those
cases involved defendants who, having at first disputed the quantity of drugs they
were responsible for and then dropped those factual challenges at sentencing, sought
on appeal to argue that letting the district court rather than a jury make the drug-
quantity finding violated their Fifth and Sixth Amendment rights. See Clements, 142
F. App’x at 224-25, 228; Stines, 313 F.3d at 916-17. The court found forfeiture, not
waiver—and thus undertook plain error review—emphasizing that the Supreme Court
decisions on which the appeals were based (in Clements, United States v. Booker,
543 U.S. 220 (2005); in Stines, Apprendi v. New Jersey, 530 U.S. 466 (2000)) had
not been issued yet at the time of sentencing. See Clements, 142 F. App’x at 229;
Stines, 313 F.3d at 917. That fact was significant because the court apparently
believed a defendant could not raise a Booker challenge before Booker, or an
Apprendi challenge before Apprendi, so the timing of the Supreme Court rulings

                                         -4-
conclusively established that the arguments the defendants had raised, and then given
up at sentencing, must have been different from those they were advancing on appeal.
See Clements, 142 F. App’x at 229; Stines, 313 F.3d at 917.

      Mathis did not establish a new sort of challenge in the same way. As the
Supreme Court presented it, the decision simply reflected the “straightforward”
application of decades of precedent. Mathis, 579 U.S. at ___, 136 S. Ct. at 2257.
More to the point, the substance of Evenson’s Mathis argument today is the same as
what he argued, without Mathis, in his objection to the PSR—that “his predicate
offenses . . . are not qualifying ‘felony crimes of violence’ for purposes of U.S.S.G.
section 4B1.1(a)” because “Iowa’s burglary statute is not categorically a crime of
violence.”4 Cf. Clements, 142 F. App’x at 229 (explaining the substantive difference
between the challenge the defendant might have waived at sentencing and what he
argued on appeal); Stines, 313 F.3d at 917. At most, Mathis strengthens that
argument. The possibility of pursuing such a challenge and benefitting from a ruling
like Mathis is precisely what Evenson traded away when he agreed to withdraw his
objection in exchange for the certainty of an offense level reduction that immediately
took more than three years off his Guidelines range.

       Evenson, as the saying goes, opted for the bird in hand at the time of
sentencing. On appeal, he asks this court to give him the two birds from the bush as
well, after someone else caught them. We simply hold him to his choice.

      4
        The fact that at the time Evenson was sentenced, circuit precedent held Iowa
third-degree burglary to be a crime of violence under the Guidelines, see United
States v. Stevens, 149 F.3d 747, 749 (8th Cir. 1998), did not mean Evenson “had no
right to object at sentencing to the use of his burglary conviction as a qualifying
offense,” as he asserts. After all, Evenson did in fact object to just that point.
Although he might have thought the odds were against him, Evenson certainly had
every right to maintain his objection, argue his case, and try to convince the en banc
court or the Supreme Court to overrule our precedent (or just wait and hope for a
favorable ruling in Mathis, which was due to be released any day).

                                         -5-
II.    TORRES ALVAREZ
       Miguel Torres Alvarez sold methamphetamine to a police informant and was
arrested on his way to a follow-up sale. The police found 217 grams of
methamphetamine in Torres Alvarez’s car. At his residence, the police found another
592 grams of methamphetamine (and 125 grams of ice methamphetamine), 583 grams
of cocaine, 3,778 grams of marijuana, cash, a handgun, and ammunition. Like
Evenson, Torres Alvarez pled guilty to conspiracy to distribute a controlled
substance. See 21 U.S.C. §§ 841(a)(1), 846. The Guidelines recommended a
sentence between 168 and 210 months. The government argued for 168 months.
Torres Alvarez asked the district court to vary down to 100 months.

       Torres Alvarez’s argument for a variance (to the extent he maintains it on
appeal) was based on the traumas and difficulties he faced in the past, including
“parental abandonment, physical abuse, sexual abuse, and substance abuse.”
Growing up, Torres Alvarez was permanently abandoned by his father, abandoned
by his mother for several years, causing him to believe another woman was his
mother until he was four or five years old, beaten by staff at the orphanage where he
lived for a time, molested by his cousins, tricked by his mother into going to Mexico
to work in the fields, and compelled to drop out of school after being stabbed and shot
at by gang members. As an adult, Torres Alvarez struggled with drinking, using
cocaine and other drugs, and gambling, leading to debts he tried to pay by
transporting drugs. In light of that background, Torres Alvarez’s lawyer argued
“[t]he lack of trust and lack of understanding of how human interactions [work] . . .
Mr. Torres must suffer is substantial.”

       The district court began its explanation of the sentence by noting the difficulty
of the sentencing determination in this case, telling Torres Alvarez: “I accept that you
have been on a pretty rough road and you’re dealing with some mental health issues
perhaps as a result of that, perhaps because of other exposures as well.” Yet the
district court found those factors counterbalanced by the seriousness of Torres

                                          -6-
Alvarez’s crime, particularly the large quantities of drugs involved—“a lot of poison
available to a lot of people and a lot of damage to a lot of lives”—and the presence
of a gun, as well as the need to avoid unwarranted disparities with the sentences other
defendants received. See generally 18 U.S.C. § 3553(a) (listing sentencing
considerations). The district court “conclude[d] that a variance is simply not
supported under the record of this case.” The district court “agree[d] . . . that the
bottom of the guideline range certainly is fully sufficient” and therefore sentenced
Torres Alvarez to 168 months.

        Affording due deference to the district court, we discern no abuse of discretion
in that analysis or conclusion. See, e.g., United States v. Feemster, 572 F.3d 455, 461
(8th Cir. 2009) (en banc) (standard of review); see also id. (“If the defendant’s
sentence is within the Guidelines range, then we ‘may, but [are] not required to, apply
a presumption of reasonableness.’” (alteration in original) (quoting Gall v. United
States, 552 U.S. 38, 51 (2007))). There is no indication the district court “‘g[a]ve[]
significant weight to an improper or irrelevant factor’” or “‘commit[ted] a clear error
of judgment’” in weighing the relevant sentencing factors. Id. (quoting United States
v. Kane, 552 F.3d 748, 752 (8th Cir. 2009), vacated, 562 U.S. 1267 (2011)). Nor did
the district court “‘fail[] to consider a relevant factor that should have received
significant weight,’” id. (quoting Kane, 552 F.3d at 752), by “erroneously
minimiz[ing] the egregious nature of” Torres Alvarez’s circumstances or denying him
the “particularized consideration” to which he was entitled, as Torres Alvarez
asserts.5 To the contrary, the district court’s explanation makes clear it fully


      5
        On appeal, Torres Alvarez also faults the district court for not addressing the
role of addiction as a contributing cause of his crimes. Torres Alvarez did not clearly
present this issue to the district court in his oral or written arguments—the only
mention of addiction was in the psychological evaluation he attached to his
sentencing memorandum. Further, we think the district court’s reference to Torres
Alvarez’s “mental health issues” is best understood, in context, as an
acknowledgment of Torres Alvarez’s struggles with addiction.

                                          -7-
appreciated the considerations Torres Alvarez identified, carefully weighed them
against countervailing factors, and simply struck a different balance than Torres
Alvarez. That is no grounds for reversal. See, e.g., United States v. Bridges, 569
F.3d 374, 379 (8th Cir. 2009).

III.   CONCLUSION
       Evenson waived the argument that his Iowa burglaries were not crimes of
violence under the Guidelines, foreclosing appellate relief. Torres Alvarez was not
entitled to a sentence below his Guidelines range. Both of their sentences are
affirmed.
                      ______________________________




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