                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-1019
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

             Jamarlo Laqueze Scales, also known as Jamarlo L. Scales

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

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

                           Submitted: September 23, 2013
                             Filed: November 20, 2013
                                  ____________

Before RILEY, Chief Judge, BYE and GRUENDER, Circuit Judges.
                              ____________

RILEY, Chief Judge.

      Jamarlo Scales pled guilty to possessing with intent to distribute cocaine base,
cocaine, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), (C),
and (D), and possessing a firearm in furtherance of drug trafficking, in violation of
18 U.S.C. § 924(c)(1)(A). The district court1 sentenced Scales to three concurrent
prison terms of 120 months on the drug counts and one consecutive prison term of 60
months on the firearm count. On appeal, Scales challenges his sentence on a variety
of grounds. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

I.    BACKGROUND
      On December 19, 2011, law enforcement officers arrived at a second-floor
apartment responding to a complaint of marijuana odor. Officers detected the
marijuana odor. After no one responded to the officers’ attempts to make contact, they
obtained and executed a search warrant for the apartment. While some officers
attempted to enter the apartment, other officers at the rear of the apartment observed
two men on the balcony. A third man, later identified as Scales, jumped out of a
window and fled, carrying a duffel bag. The officers gave chase. In the chase, Scales
threw the duffel bag at the officers. Ultimately, Scales was apprehended.

      Retrieving the duffel bag, the officers found cocaine base, cocaine, and
$76,600 inside the bag. In the apartment, which was not rented to Scales, officers
found marijuana and an unloaded Smith & Wesson .357 revolver, among other items.
Scales consented to a search of his vehicle, where the officers found more marijuana
and cocaine base.

       A grand jury returned a superseding indictment charging Scales with three
counts of drug trafficking charges and two counts of associated firearm charges,
along with a notice of forfeiture. The government filed a motion for preliminary
forfeiture of property, which the district court granted on August 24, 2012. Scales
pled guilty to the three drug trafficking charges and the first of the two firearm
charges, without a written plea agreement.


      1
        The Honorable James E. Gritzner, Chief Judge, United States District Court
for the Southern District of Iowa.

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       The district court held a sentencing hearing on December 20, 2012. Based on
a stipulation between Scales and the government, the district court found Scales’
United States Sentencing Guidelines (Guidelines) adjusted base offense level to be
25. The district court also found Scales’ criminal history category to be VI. As to the
three drug counts, the district court first declared a mandatory minimum of 120
months applied, but after the government explained its charging agreement, the
district court stated the advisory Guidelines range was 110 to 137 months, with a
mandatory consecutive sentence of 60 months for the firearm charge. Scales objected
to the district court’s calculation of the advisory Guidelines range, arguing the
criminal history category should have been V, which would have produced a
Guidelines range of 100 to 125 months.

       Noting it had considered “all of the factors” dictated by 18 U.S.C. § 3553(a),
the district court sentenced Scales to 120 months imprisonment on each of the three
drug counts, to run concurrently—noting that this sentence was within the advisory
Guidelines range calculated by the defendant—and 60 months consecutive
imprisonment on the firearm charge. The district court dismissed the second firearm
count. No mention was made of the forfeiture at the sentencing hearing.

       That same day, the district court entered judgment in Scales’ case with no
forfeiture of property. Thirteen days later, on January 2, 2013, upon the government’s
motion, the district court entered an amended judgment stating Scales shall forfeit
“[a]pproximately $76,600.00 in U.S. Currency seized on or about December 19, 2011,
as further outlined in the preliminary motion for forfeiture filed on August 24, 2012.”
On January 10, 2013, the district court entered a final order of forfeiture.

II.   DISCUSSION
      A.    Standard of Review
      Where an appellant objects at the district court level to a district court’s
procedure in imposing a sentence, “[r]egardless of whether the sentence imposed is

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inside or outside the Guidelines range, the appellate court must review the sentence
under an abuse-of-discretion standard. It must first ensure that the district court
committed no significant procedural error.” Gall v. United States, 552 U.S. 38, 51
(2007). “‘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) (quoting Gall, 552 U.S. at 51). Assuming there is no procedural
error, “[i]f the sentence is within the Guidelines range, the appellate court may, but
is not required to, apply a presumption of reasonableness.” Gall, 552 U.S. at 51.
“Where, as here, a sentence imposed is within the advisory guideline range, we
typically accord it a presumption of reasonableness.” United States v. Deegan, 605
F.3d 625, 634 (8th Cir. 2010).

       B.    Constitutional Challenge to Sentencing Guidelines
       Scales, through counsel, advances a borrowed argument2 that the judiciary’s
continued use of the Guidelines violates the doctrine of separation of powers and
damages the integrity of the judiciary. The Supreme Court has thoroughly examined
and rejected Scales’ argument. See Mistretta v. United States, 488 U.S. 361, 412
(1989). The district court in this case, in accordance with settled precedent, began “by
correctly calculating the applicable Guidelines range.” Gall, 552 U.S. at 49 (citing
Rita v. United States, 551 U.S. 338, 351 (2007)). We detect no error, constitutional
or otherwise.




      2
       Scales’ counsel acknowledges, “Portions of this argument were authored by
[another attorney who is not representing Scales] and submitted in other actions
before this Court. Those portions are printed here with the author’s permission.”

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       C.     Presumption of Reasonableness
       Through counsel, Scales also contends the district court procedurally erred by
(1) failing to make an independent § 3553(a) determination of the appropriate
sentence for Scales (indulging in what Scales’ counsel terms “guidelinitis”), and
(2) not adequately explaining Scales’ sentence of imprisonment. Scales argues the
district court, “[w]ithout saying so,” impermissibly presumed the Guidelines range
was reasonable.

        We disagree. Our thorough review of the sentencing transcript reveals the
district court followed the correct procedure by first determining the applicable
advisory Guidelines range, considering the § 3553(a) factors in conjunction with
Scales’ particular situation, and providing an individualized explanation of how “the
guideline sentencing system adequately addresses the circumstances of this case and
that a sentence of the mid range based upon the criminal history is entirely supported
and appropriate in this case.” In addition, the district court explicitly addressed and
rejected Scales’ proffered Guidelines range. We need not guess what the district
court would have done in the event the advisory Guidelines range was as Scales
suggests. The district court made it clear the sentence was “essentially in the middle
of either one of those ranges, so it ends up being a not terribly significant
consequence.” The district court did not abuse its discretion by sentencing Scales
within the Guidelines range to serve a total of 120 months in prison on the three drug
counts.

       D.      Pro Se Brief
       Although “[i]t is Eighth Circuit policy not to consider pro se filings when the
appellant is represented by counsel,” United States v. Montgomery, 701 F.3d 1218,
1220 n.2 (8th Cir. 2012) (internal quotation omitted), in response to Scales’ pro se
motion for appointment of new attorney, we granted Scales permission to file a pro
se brief setting out the issues he believes should have been raised in the brief filed by



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his appointed attorney. Renitently, we will consider the five issues raised by Scales
in his pro se brief. See United States v. Benson, 686 F.3d 498, 505 (8th Cir. 2012).

       Scales first challenges the integrity of the superseding indictment, contending
there is no factual basis in support of count four, possession of a firearm in violation
of 18 U.S.C. § 924(c)(1)(A). Scales did not preserve this contention below, so we
review only for plain error. See United States v. Espinoza Bravo, 624 F.3d 921, 924
(8th Cir. 2010) (per curiam). Scales quotes Bailey v. United States, 516 U.S. 137
(1995), in an effort to cast aspersion on the sufficiency of the indictment, stating that
use of a firearm is required, not mere possession. But the statute was amended by
Congress in direct response to Bailey: “Congress’ 1998 reformulation of § 924(c) . . .
responded primarily to [the Supreme Court’s] decision in Bailey[]. In proscribing
‘use’ of a firearm, Bailey held, § 924(c)(1) did not reach ‘mere possession’ of the
weapon. Congress legislated a different result; in the 1998 revision, . . . the
Legislature brought possession within the statute’s compass.” Abbott v. United
States, 562 U.S. ___, ___, 131 S. Ct. 18, 25 (2010) (quoting Bailey, 516 U.S. at 144).
Under any standard of review, Scales’ argument is without merit.

       Second, Scales maintains the firearm found in the apartment on the day of his
arrest was not his, arguing he did not live in the apartment, no fingerprints were found
on the firearm, the firearm was unloaded, no ammunition was found in the apartment,
and no witness associated Scales with that particular firearm. He concludes no
factual basis exists for the guilty plea. The facts set out in the presentence
investigation report (PSR) regarding the firearm count, which the district court
accepted “as factual findings for our purposes” at the sentencing hearing, are as
follows: the apartment was rented to another individual; “[law enforcement officers]
located . . . an unloaded Smith [&] Wesson .357 Revolver in a diaper bag”; and
several witnesses testified to their observations of Scales buying, possessing, and
using a firearm in furtherance of drug trafficking. Reviewing for plain error, this court



                                          -6-
concludes the district court properly determined “a factual basis for the plea” of guilty
existed before entry of judgment. Fed. R. Crim. P. 11(b)(3).

       Third, we reject Scales’ renewal of his counsel’s objection to the PSR’s
criminal history calculation. We see no basis for concluding the district court erred
in finding the PSR correctly represented Scales’ criminal history. Because the district
court acknowledged Scales’ proposed calculation, rejected it, yet noted the assessed
sentence was within Scales’ suggested range and would “not [make a] terribly
significant consequence” under Scales’ calculated range, Scales is not harmed in any
event.

       Fourth, we reject Scales’ argument that the district court erred by entering the
amended judgment, without his presence, to include forfeiture of the $76,600 found
in the duffel bag. Scales states the district court was “without authority” to issue the
amended judgment because Federal Rules of Criminal Procedure 32.2 and 43 required
the “additional penalty” of forfeiture be imposed at a sentencing hearing. We
addressed a similar situation in United States v. Hatcher, 323 F.3d 666 (8th Cir.
2003). There, after having issued a preliminary order of forfeiture, “the judge
formally announced [the defendant’s] sentence without mentioning the forfeiture
order. The formal sentence was committed to writing . . . , again with no mention of
the forfeiture.” Id. at 673. We concluded, “In light of the Court’s earlier entry of a
preliminary forfeiture order, however, . . . the omission did constitute a clerical error[,
and] the District Court retained jurisdiction to correct it. We thus find no error in the
District Court’s entry of the forfeiture order.” Id. at 673-74; see also Fed. R. Crim. P.
32.2(b)(4)(B); cf. United States v. Shakur, 691 F.3d 979, 987, 989 (8th Cir. 2012)
(reaching a different result when no preliminary order of forfeiture had been issued
by the district court).

       In this case a preliminary order of forfeiture was entered. Scales was advised
of the forfeiture at his change of plea hearing and even was put on notice earlier with

                                           -7-
the notice of forfeiture in the superseding indictment. Although there is no evidence
of a stipulation between Scales and the government as to the forfeiture, at no point
in any of the proceedings did Scales object to the notice of forfeiture in the
superseding indictment or the preliminary forfeiture order, nor did he ever attempt to
offer evidence that the $76,600 in cash found in the duffel bag discarded by him was
not the proceeds of illegal drug trafficking. We find no error in the district court’s
clerical amendment of Scales’ judgment to add the forfeiture. See Fed. R. Crim. P.
32.2(b)(4)(B), 36.

       Finally, we will not reverse based on Scales’ assertion that the district court
erred by exceeding the maximum penalty for count three, possession with the intent
to distribute a mixture and substance containing marijuana in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(D). The maximum statutory penalty on this count was five years,
and the district court sentenced Scales to 120 months (i.e., ten years). Because Scales
did not preserve this issue below, we again review for plain error. See United States
v. Troyer, 677 F.3d 356, 358 (8th Cir. 2012). We agree with Scales’ reading of the
statute, and note the PSR also states, that the maximum term of imprisonment on
count three is five years. Because the sentences on counts one and two, both 120
months, are authorized and run concurrently with count three, this sentencing error
on count three does not change Scales’ sentence. See United States v. Pirani, 406 F.3d
543, 552 (8th Cir. 2005) (en banc). The error both is harmless under Fed. R. Crim.
P. 52(a) and is not such an error for which we exercise our plain error discretion
under Fed. R. Crim. P. 52(b) because the error does not affect Scales’ substantial
rights. See United States v. Marcus, 560 U.S. ___, ___, 130 S. Ct. 2159, 2164 (2010).

III.   CONCLUSION
       We affirm.
                  ______________________________




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