                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-1095
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                               Joseph Mario McGrew

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                          Submitted: September 23, 2016
                             Filed: January 17, 2017
                                 ____________

Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
                             ____________

SMITH, Circuit Judge.

      Joseph McGrew pleaded guilty to unlawful possession of a firearm in violation
of 18 U.S.C. § 922(g)(3), which carries a statutory maximum penalty of 120 months’
imprisonment. 18 U.S.C. § 924(a)(2). At sentencing, McGrew made several
objections to his presentence investigation report (PSR) and argued that the district
court1 should apply a sentencing range of 33 to 41 months’ imprisonment for the
charged offense under the United States Sentencing Guidelines. The district court,
taking into account its calculated Guidelines range of 135 to 168 months, sentenced
McGrew to the statutory maximum penalty of 120 months. After ruling on McGrew’s
objections, the district court stated that it would find the statutory maximum sentence
appropriate regardless of the final Guidelines range determination.

       On appeal, McGrew argues that his sentence should be vacated and that this
case should be remanded for resentencing because the district court improperly
calculated his Guidelines range. We need not address the merits of McGrew’s
Guidelines contentions because even if the district court erred in its Guidelines
calculation, its sentence is affirmable. The district court founded its sentence upon its
determination that the statutory maximum is the appropriate sentence and that no
sentence within any argued Guidelines range would suffice in this circumstance. Any
Guidelines calculation error was harmless. We therefore affirm the judgment of the
district court.

                                  I. Background
      On December 4, 2013, Des Moines police officers stopped a vehicle driven by
McGrew for a minor traffic infraction. During the stop, the officers noticed a strong
odor of marijuana coming from inside the vehicle. The officers ordered McGrew and
his companion to exit. While searching the vehicle, the officers discovered a stolen
9mm handgun and ammunition in a secret compartment. At first McGrew denied
knowledge of the handgun, but later, as part of his plea agreement, he acknowledged
possessing it.




      1
       The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.

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       Within two months of the December 4th incident, McGrew had two additional
encounters with the police involving vehicle stops and firearms. Before the grand jury
returned its first indictment against McGrew, investigators lawfully searched
McGrew’s Facebook account. This search uncovered numerous photographs of
McGrew possessing a firearm, smoking marijuana, and making gang-related gestures.
The search also uncovered multiple conversations between McGrew and other
Facebook users regarding the purchase and sale of various firearms. The court issued
an arrest warrant on October 29, 2014, and McGrew received pretrial release on
November 7, 2014. During this release period, McGrew served a ten-day jail sentence
for harassing the mother of his children, tested positive for marijuana use, and stashed
an AK-47 assault rifle in an attic. On April 28, 2015, after several superceding
indictments involving these additional charges, the grand jury indicted McGrew for
having committed four counts of unlawful possession of a firearm and one count of
contempt of court for possession of a firearm in violation of pretrial release. The
government entered into a plea agreement with McGrew that dropped all the charges
except the single count relating to the December 4th stop. The United States
Probation Office used the Facebook evidence and McGrew’s further encounters with
law enforcement in making its PSR Guidelines determination. The report scored
McGrew’s total offense level at 32 and his criminal history as category II. The PSR
calculated McGrew’s sentencing range to be 135 to 168 months’ imprisonment.

       At his sentencing hearing, McGrew objected to the offense level calculation
applied to him, specifically contesting: (1) the base offense level; (2) a four-point
enhancement for possessing more than eight firearms; (3) an enhancement based on
the offense’s connection to other offenses; and (4) the denial of a single-point
reduction for McGrew’s acceptance of responsibility. The district court addressed all
these objections in turn, finding the recommended total offense level appropriate.
After discussing the sentencing factors found in 18 U.S.C. § 3553(a), the district court
determined that the 120-month statutory maximum penalty was appropriate, stating:
“Unquestionably this is the same sentence that I would have imposed regardless of

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how any of the guideline issues were resolved in this case, and it’s for all of the
reasons that I identified, other than the guideline range factor.”

                                    II. Discussion
       McGrew asserts that the court misapplied several of the enhancements and
selected the wrong base offense level. We review de novo the district court’s
“construction and application of the Guidelines,” United States v. Beckman, 787 F.3d
466, 494 (8th Cir. 2015) (quotation omitted), but when the court derives its ultimate
sentence apart from the Guidelines and offers an alternative explanation for its
sentence, “such explanations may serve to prove other identified sentencing errors
harmless.” United States v. Dean, 823 F.3d 422, 429 (8th Cir. 2016) (per curiam)
(quoting United States v. Sayles, 674 F.3d 1069, 1072 (8th Cir. 2012)).

       Congress created the United States Sentencing Commission to promulgate
sentencing guidelines in order to overcome the serious disparities in imprisonment
lengths that could occur between different defendants prosecuted for similar crimes.
See Mistretta v. United States, 488 U.S. 361, 363–70 (1989). “The district courts,
while not bound to apply the Guidelines, must consult those Guidelines and take them
into account when sentencing.” United States v. Booker, 543 U.S. 220, 264 (2005).
The Guidelines are a “starting point” for a potential sentence, followed by the
application of the factors found in 18 U.S.C. § 3553(a) to determine whether the
sentencing range is appropriate. Gall v. United States, 552 U.S. 38, 49–50 (2007). In
reviewing the sentence applied by the district court, we must first review the sentence
for any

      significant procedural error, such as 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.

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Id. at 51. Then, if we find no significant procedural error, the “substantive appellate
review in sentencing cases is narrow and deferential.” United States v. Feemster, 572
F.3d 455, 464 (8th Cir. 2009) (en banc) (quoting United States v. Gardellini, 545 F.3d
1089, 1090 (D.C. Cir. 2008)).

        McGrew contends that the district court committed a significant procedural
error by improperly determining his Guidelines sentencing range. We review a district
court’s application of the Guidelines de novo. Beckman, 787 F.3d at 494. It is well
established in the Eighth Circuit, however, that a Guidelines calculation error is
harmless if it “did not substantially influence the outcome of the sentencing
proceeding.” United States v. Henson, 550 F.3d 739, 741 (8th Cir. 2008); see also
United States v. Staples, 410 F.3d 484, 492 (8th Cir. 2005) (“An error is harmless if
it is clear from the record that the district court would have given the defendant the
same sentence regardless of which guidelines range applied.”). As with all Guidelines
deviations, we look to whether the district court “adequately explain[ed] the chosen
sentence to allow for meaningful appellate review and to promote the perception of
fair sentencing.” Gall, 552 U.S. at 50.

       At the outset, we recognize that an improperly determined Guidelines range can
create a significant procedural defect in a defendant’s sentence. See Peugh v. United
States, 133 S. Ct. 2072, 2084 (2013) (“[W]hen a Guidelines range moves up or down,
offenders’ sentences move with it.”). In the majority of cases, the Guidelines act as
both the starting point and the lodestar for determining the appropriate sentence.
Molina–Martinez v. United States, 136 S. Ct. 1338, 1346 (2016). The Supreme Court
has recognized, however, that “[t]he record in a case may show . . . that the district
court thought the sentence it chose was appropriate irrespective of the Guidelines
range.” Id. In cases in which the sentencing court—taking into account the particular
circumstances of the case—applies the maximum statutory penalty for an offense
irrespective of the Guidelines and explains its reasoning for doing so, any possible

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sentencing range miscalculation is harmless. See United States v. Waller, 689 F.3d
947, 958 (8th Cir. 2012) (per curiam).

       In Waller, the defendant pleaded guilty to knowingly transmitting a threat to
injure another person, an offense with a maximum penalty of 60 months’
imprisonment. Id. at 950, 957. The defendant’s PSR calculated a sentencing range of
6 to 12 months. Id. at 950. At sentencing, the court granted a two-level enhancement
under U.S.S.G. § 3A1.1(b)(1) because the offense included a vulnerable victim,
resulting in a new range of 10 to 16 months’ imprisonment. Id. at 956. During the
hearing, the district court also heard extensive testimony regarding the threats that the
defendant had made to his missing wife. Id. at 951–55. Finding the threat at issue
“inextricably intertwined” with a history of threatening behavior, the court ordered
the statutory maximum of 60 months’ imprisonment. Id. at 956–57. The court further
stated “that it would have imposed the same 60-month sentence regardless of whether
the two-level enhancement applied.” Id. at 957. On review, we held that even
assuming procedural had occurred in applying the enhancement, “we need not
determine whether the district court procedurally erred . . . because any such error
would be harmless.” Id. at 958.

       Waller’s reasoning applies here. Although McGrew pleaded guilty to one count
of possessing a firearm, the district court found that the evidence surrounding this
single charge compelled a more serious penalty. McGrew’s Facebook page had
multiple photos of him smoking marijuana and brandishing firearms. His message
history included numerous references to gang membership, selling weapons, and
other illegal activity. The government introduced an AK-47 assault rifle connected
to McGrew during pretrial release. As the district court stated, “This is not the offense
in its most basic form. It’s the offense in a very aggravated form, . . . because of the
multiple weapons, the gang-related nature of it and his status as an arms dealer . . . .”
The district court stated that it would have given McGrew the maximum penalty
“regardless of how any of the guideline issues were resolved in this case.”

                                          -6-
       McGrew relies on United States v. Bah, 439 F.3d 423 (8th Cir. 2006), for the
proposition that the district court cannot immunize a Guidelines range miscalculation
with a blanket statement that it would have chosen a certain sentence regardless of
the calculated range. McGrew’s proposition is true but inapplicable. In Bah, the
district court improperly applied a sentencing enhancement pursuant to U.S.S.G.
§ 2L2.1 to the defendant’s Guidelines range, resulting in a total offense level of 12.
Id. at 426. Because the defendant’s PSR also provided an offense level of 12 using
a different Guideline provision, the government argued that the district court’s
improper Guidelines calculation was harmless. Id. at 430. We disagreed, noting that
to rely on an alternative method of calculating the Guidelines range, the sentencing
court would still have to provide reasoning for this alternative application at the time
of sentencing. Id. at 431–32. Even though the district court expressly stated that it
would have applied the same sentence regardless of the range applied, we stated: “We
have yet to apply such a harmless error rule where the sentencing court pronounced
a blanket identical alternative sentence to cover any potential guidelines calculation
error asserted on appeal without also basing that sentence on an alternative guidelines
calculation.” Id. at 431. Bah comports with the guiding principle that the sentencing
court needs to provide enough reasoning for “meaningful appellate review” of the
sentence applied. Gall, 552 U.S. at 50.

       A sentencing court that grounds its sentence upon a statutory maximum penalty
based on the unique facts of the defendant’s case provides this court with an objective
basis for the chosen sentence apart from the applicable Guidelines range. Accord
United States v. Goodyke, 639 F.3d 869, 876 (8th Cir. 2011) (“[I]t appears from the
record that regardless of the Guidelines range and the recommendations of the parties,
seventy-five months was the sentence that the district court was going to impose.”).
This does not eliminate the requirement of the sentencing court to make proper
Guidelines determinations and to follow proper procedures. United States v. Haack,
403 F.3d 997, 1003 (8th Cir. 2005) (“[T]he court should be careful to identify

                                          -7-
potential applicable ranges, the reason why a specific range is not being selected, and
other § 3553(a) factors that predominate.”). Nevertheless, when a sentencing court
adequately justifies setting a defendant’s sentence based on the maximum statutory
penalty, quibbles about the application of Guidelines enhancements or departures
become moot.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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