                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 04-2151
                                ________________

United States of America,                  *
                                           *
           Appellee,                       *
                                           *      Appeal from the United States
      v.                                   *      District Court for the
                                           *      Northern District of Iowa.
Darcy Jay Betterton,                       *
                                           *
           Appellant.                      *
                                           *
                                           *

                                ________________

                          Submitted: December 13, 2004
                              Filed: August 2, 2005
                               ________________

Before BYE, HANSEN, and GRUENDER, Circuit Judges.
                         ________________

GRUENDER, Circuit Judge.

        Darcy Jay Betterton appeals his conviction on three counts of possession with
intent to distribute a controlled substance after having been previously convicted of
at least one felony drug offense, in violation of 18 U.S.C. §§ 841(a), 841(b)(1)(B) and
851. In addition, Betterton raises for the first time on appeal the argument that his
sentence, based on the application of the United States Sentencing Guidelines in a
mandatory fashion, was unconstitutional. For the reasons discussed below, we affirm
the conviction but vacate Betterton’s sentence and remand to the district court for
resentencing.

I.    BACKGROUND

       Betterton was stopped by Carroll, Iowa police officer Jason Fett because the
car Betterton was driving had a cracked windshield which impeded the driver’s line
of sight. Betterton immediately admitted to Officer Fett that his driver’s license was
suspended. Betterton also informed Officer Fett that the car belonged to his
girlfriend, Pam Jones. Officer Fett decided to arrest Betterton for driving with a
suspended license. Because the car was stopped in a no-parking area on a busy street,
Officer Fett called on another officer, Officer Fleecs, to make arrangements for the
car to be towed to a secure bay at the police station for an inventory search pursuant
to an unwritten Carroll Police Department impoundment policy. Officer Fett then
drove Betterton to the police station, where he was booked and released. Officer
Fleecs had the vehicle towed to the station. Betterton made several phone calls from
the station in an attempt to find someone to pick up the car, but he initially was
unsuccessful.

       Before the inventory search of the vehicle commenced, Betterton’s friend
Donna Vonnahme arrived at the station to pick up the car. Officer Fett informed
Vonnahme that he was obligated to inventory the vehicle before releasing it. In
addition, Officer Fett learned that Vonnahme did not have cash to pay the tow bill.
After Vonnahme returned with sufficient cash, Officer Fett informed her that only the
registered owner of the car could sign for it. Shortly thereafter, Pam Jones, the
registered owner, arrived to sign for the car. Officer Fett told Jones he would call her
when the inventory was completed.

      Officers Fett and Fleecs then performed the inventory search. In the back seat,
they discovered a zipped black bag of the type commonly used to a hold laptop

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computer. The bag contained methamphetamine, cocaine and marijuana, as well as
drug paraphernalia and cash. Officer Fett immediately left to prepare a warrant for
Betterton’s arrest, while Officer Fleecs completed the inventory search.

       Betterton was indicted on three counts of possession with intent to distribute
a controlled substance after having been previously convicted of at least one felony
drug offense, in violation of 18 U.S.C. §§ 841(a), 841(b)(1)(B), and 851. During his
jury trial, the prosecution introduced evidence of his two prior convictions of
possession with intent to deliver methamphetamine via testimony from the arresting
officers and certified copies of the judgments. The jury was instructed that this
evidence could only be used to prove Betterton’s intent, knowledge, motive, and lack
of mistake or accident in carrying out the acts charged in the indictment. The jury
found Betterton guilty on all three counts. He was sentenced to concurrent prison
terms of 360 months on count one, 360 months on count two, and 120 months on
count three. Betterton appeals the district court’s admission of evidence obtained
from the inventory search and of evidence of his prior convictions. Betterton also
raises for the first time on appeal the argument that he was unconstitutionally
sentenced under a mandatory application of the Sentencing Guidelines.

II.   DISCUSSION

      A. The Inventory Search

       The district court denied Betterton’s motion to suppress the evidence obtained
from the inventory search. We review the district court’s factual findings for clear
error and its conclusions of law de novo. United States v. Escamilla, 301 F.3d 877,
879 (8th Cir. 2002).

     Betterton contends that the inventory search violated the Fourth Amendment.
To be constitutional, “[a] warrantless inventory search must be done pursuant to

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‘standard police procedures’ and for the purpose of ‘protecting the car and its
contents.’” United States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1998) (quoting South
Dakota v. Opperman, 428 U.S. 364, 372, 373 (1976)). “[P]olice may exercise
discretion to impound a vehicle, ‘so long as that discretion is exercised according to
standard criteria and on the basis of something other than suspicion of evidence of
criminal activity.’” United States v. Petty, 367 F.3d 1009, 1012 (8th Cir. 2004)
(quoting Colorado v. Bertine, 479 U.S. 367, 375 (1987)).

       Betterton argues that the Carroll Police Department’s lack of a written policy
controlling the decision to impound a vehicle gave its police officers
unconstitutionally broad discretion.1 However, the absence of a written policy
controlling the decision to impound a vehicle does not automatically render an
inventory search unconstitutional. While a written policy may be preferable,
testimony can be sufficient to establish police impoundment procedures. Petty, 367
F.3d at 1012. In addition, an impoundment policy may allow some latitude and
exercise of judgment by a police officer when those decisions are based on
“legitimate concerns related to the purposes of an impoundment.” Id.

         Officer Fett testified that it was within his discretion to impound the car
because it was stopped in a traffic lane in a no-parking zone and would be a hazard
if left in that location. “The authority of police to seize and remove from the streets
vehicles impeding traffic or threatening public safety and convenience is beyond
challenge.” Opperman, 428 U.S. at 369. In addition, the officers could not allow
Betterton himself to drive the car to a safer location because Betterton’s license was
suspended. Officers Fett and Fleecs both testified that they had no awareness of any
criminal history on the part of Betterton and had no reason to suspect the inventory


      1
       The Carroll Police Department did have a written policy controlling how the
inventory search was to be performed. Betterton does not assert that the method of
conducting the inventory search was unconstitutional.
                                          -4-
search would yield evidence of criminal activity. Therefore, the district court did not
err in concluding that the decision to impound was based on the legitimate concern
of traffic safety and was “not merely ‘a ruse for general rummaging in order to
discover incriminating evidence.’” Petty, 367 F.3d at 1012 (quoting Florida v. Wells,
495 U.S. 1, 4 (1990)).

       Betterton also argues that the public safety interest also would have been
served if the police had remained at the scene of the traffic stop and allowed
Vonnahme to pick up the car. However, “[n]othing in the Fourth Amendment
requires a police department to allow an arrested person to arrange for another person
to pick up his car to avoid impoundment and inventory.” United States v. Agofsky,
20 F.3d 866, 873 (8th Cir. 1994).

     Finally, Betterton contends that the failure to immediately release the car to its
owner, Pam Jones, when she arrived at the station before the inventory search had
commenced violated Iowa Code § 321J.4B(5)(a) (2002), which states:

      The following persons shall be entitled to immediate return of the motor
      vehicle without payment of costs associated with the impoundment or
      immobilization of the vehicle:

      (1) The owner of the motor vehicle, if the person who operated the
      motor vehicle is not a co-owner of the motor vehicle.

       Although it is doubtful that § 321J.4B(5)(a) applies to prevent an inventory of
a vehicle after it has been impounded, we do not need to address the issue here. By
its own terms, § 321J.4B(5)(a) only applies to impoundments resulting from a
violation of § 321J.2, “Operating while under the influence of alcohol or a drug or
while having an alcohol concentration of .08 or more (OWI).” See Iowa Code §
321J.4B(2). Because there was no § 321J.2 violation in connection with this case, §
321J.4B(5)(a) does not apply.


                                          -5-
      We conclude that the district court did not err in denying Betterton’s motion
to suppress the evidence obtained from the inventory search.

      B.   Evidence of Prior Convictions

       The district court denied Betterton’s motion to exclude evidence of his two
prior convictions for possession of methamphetamine with intent to distribute. We
review the district court’s admission of evidence of past crimes under Fed. R. Evid.
404(b) for abuse of discretion, and we will not reverse unless the evidence “clearly
had no bearing on the case and was introduced solely to prove the defendant’s
propensity to commit criminal acts.” United States v. Williams, 308 F.3d 833, 837
(8th Cir. 2002) (quoting United States v. Howard, 235 F.3d 366, 372 (8th Cir. 2000)).

       For evidence of past crimes to be admissible under Rule 404(b), the evidence
must be (1) relevant to a material issue; (2) similar in kind and not overly remote in
time to the charged crime; (3) supported by sufficient evidence; and (4) such that its
potential prejudice does not substantially outweigh its probative value. Williams, 308
F.3d at 837.

       Betterton argues that his prior convictions were not relevant to a material issue.
However, evidence of past drug-related crimes is relevant to establish knowledge and
intent for the charged drug offense. See, e.g., United States v. Thomas, 398 F.3d
1058, 1062 (8th Cir. 2005) (holding two prior convictions for distribution of crack
relevant to show intent to distribute the crack found in defendant’s possession);
United States v. Mendoza, 341 F.3d 687, 692 (8th Cir. 2003) (holding prior
conviction for possession of methamphetamine relevant to show knowledge and
intent for conspiracy to distribute where the defendant claimed he was unaware that
another person in the vehicle was distributing methamphetamine).




                                           -6-
       Betterton’s prior convictions, one from 1998 and one from 1999, were both for
possession of methamphetamine with intent to distribute. They were certainly similar
in kind, if not identical to, the charged offenses of possession of methamphetamine,
cocaine and marijuana with intent to distribute. Furthermore, given the similarities
between the prior convictions and the current offenses, which occurred in 2002, the
prior convictions were not overly remote in time from the charged conduct. See
Thomas, 398 F.3d at 1063; United States v. Frazier, 280 F.3d 835, 847 (8th Cir.
2002) (holding evidence of similar drug-related crimes five years in the past was
“well within the bounds of admission”).

       Betterton makes no argument that the convictions were not supported by
sufficient evidence. Betterton also fails to show that the evidence of the past
convictions would tend to inflame the jury or otherwise suggest that it decide guilt
on an improper basis. See United States v. Lupino, 301 F.3d 642, 646 (8th Cir. 2002)
(“Unfair prejudice ... means an undue tendency to suggest decision on an improper
basis.”) (quoting Fed. R. Evid. 403 advisory committee note). Furthermore, the
district court instructed the jury to consider the evidence only with respect to
Betterton’s intent, knowledge, motive, and lack of mistake or accident in carrying out
the acts charged in the indictment. “A jury is presumed to follow its instructions,”
United States v. Flute, 363 F.3d 676, 678 (8th Cir. 2004) (quoting Weeks v. Angelone,
528 U.S. 225, 234 (2000)), and therefore “the use of a limiting instruction decreases
the danger that unfair prejudice will result from admission of the evidence.” Thomas,
398 F.3d at 1063.

      We conclude that the district court did not abuse its discretion in admitting
evidence of Betterton’s two prior convictions.




                                         -7-
      C. Sentencing

       Betterton argues that his sentence, pronounced under a mandatory application
of the Sentencing Guidelines, is erroneous under United States v. Booker, 125 S. Ct.
738 (2005). Before the district court, Betterton did not argue Apprendi or Blakely
error or that the guidelines were unconstitutional. Therefore, we review his sentence
for plain error. United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc).

      We apply the plain-error test as set forth in United States v. Olano, 507 U.S.
725, 732-36 (1993). The test has been stated as follows:

      before an appellate court can correct an error not raised at trial, there
      must be (1) error, (2) that is plain, and (3) that affects substantial rights.
      If all three conditions are met, an appellate court may then exercise its
      discretion to notice a forfeited error, but only if (4) the error seriously
      affects the fairness, integrity, or public reputation of judicial
      proceedings.

Pirani, 406 F.3d at 550 (quoting Johnson v. United States, 520 U.S. 461, 466-67
(1997)).

       As in Pirani, the first two factors are satisfied because the district court
committed error in applying the guidelines in a mandatory fashion, and the error is
plain at the time of appellate consideration. See Pirani, 406 F.3d at 550. To satisfy
the third Olano factor, Betterton must demonstrate “a reasonable probability that he
would have received a more favorable sentence with the Booker error eliminated by
making the Guidelines advisory.” Id. at 551.

      Because of his two prior felony convictions for controlled substance offenses,
Betterton’s offense level of 37 and criminal history category of VI were determined
from the § 4B1.1 career offender table. His resulting guidelines range was 360


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months to life. The district court sentenced Betterton to the lower end of the range,
360 months. A sentence at the lower end of the range is not, by itself, enough to
show a reasonable probability that Betterton would have received a more favorable
sentence under advisory guidelines. Id. at 553. However, the district court went on
to state that “if I had discretion, I would not be giving you a 360-month sentence.”
The district court also stated that if it had discretion, it would impose a lesser
sentence “that would meet all of the objectives of sentencing” and that the 360-month
sentence was “too harsh and too severe.” This is enough to establish “a reasonable
probability that the district court would have imposed a more lenient sentence absent
Booker error.” Pirani, 406 F.3d at 553. We conclude that Betterton satisfies the third
Olano factor.

       We must now decide, under the fourth Olano factor, “whether to exercise our
discretion to review a plain error because it ‘seriously affects the fairness, integrity,
or public reputation of judicial proceedings.’” Id. (quoting Johnson, 520 U.S. at
467). “We do not foreclose the possibility that there may be plain Booker errors that
meet the third Olano factor but not the fourth.” Id. at 554.

       For defendants who meet the first three factors of the plain-error test in the
Booker context, this Court has repeatedly chosen to exercise its discretion under the
fourth factor to vacate the defendant’s sentence. We have recognized that “refusing
to allow [a defendant] to be resentenced would leave [the defendant] incarcerated for
a longer period than that to which the district court would have sentenced him under
an advisory regime.” United States v. Fleck, Nos. 04-1820/04-1928/04-1929, slip op.
at 18 (8th Cir. June 29, 2005). We have held that this alone is enough to seriously
affect the fairness, integrity, and public reputation of the judicial proceedings that
placed the defendant in prison. Id.; see also United States v. Killingsworth, Nos. 04-
1972/04-1973, slip op. at 7-8 (8th Cir. July 6, 2005); United States v. Plumman, 409
F.3d 919, 932 (8th Cir. 2005); United States v. Rodriguez-Ceballos, 407 F.3d 937,
941-42 (8th Cir. 2005). While we fear that such conclusory analysis of the fourth

                                           -9-
Olano factor violates Olano’s admonition that “a plain error affecting substantial
rights does not, without more, satisfy the [plain-error] standard, for otherwise the
discretion afforded by [Fed. R. Crim. P.] 52(b) would be illusory,” 507 U.S. at 737,
we nevertheless feel compelled to follow prior Circuit precedent.

        We therefore exercise our discretion to vacate Betterton’s sentence and remand
to the district court for resentencing. “However, nothing in this opinion should be
construed as suggesting [a] more lenient sentence[] . . . [is] necessarily warranted or
would be reasonable. The district court must conduct its resentencing analyses in the
first instance.” Plumman, 409 F.3d at 932.

III.   CONCLUSION

       We conclude that the district court did not err in denying Betterton’s motion
to suppress the evidence obtained from the inventory search, nor in admitting
evidence of Betterton’s two prior convictions. Therefore, we affirm Betterton’s
conviction on all three counts. However, we vacate Betterton’s sentence and remand
to the district court for resentencing under an advisory guidelines regime.

HANSEN, Circuit Judge, concurring.

       I fully, but reluctantly, concur in the court’s opinion and judgment. The reason
for my reluctance is my belief that our prior panel opinions addressing the fourth
prong of the plain-error test in Booker cases are—with the utmost respect for the
views of my colleagues who sat on those panels—irreconcilable with this circuit’s en
banc precedent and the United States Supreme Court’s precedent. Nonetheless, those
prior panel opinions bind this panel, and the error I perceive can only be corrected
through a petition for rehearing en banc or a petition for certiorari.




                                         -10-
       Some of the prior panel opinions state or imply that, when a defendant satisfies
the first three prongs of the plain-error test by showing that there was plain error
which affected his substantial rights, he should be granted relief without being
required to demonstrate anything more at the fourth prong of the test. See United
States v. Aldridge, No. 03-3894, 2005 WL 1630935, at *5 (8th Cir. July 13, 2005)
(granting relief after finding the third prong satisfied, without analyzing the fourth
prong); United States v. Rodriguez-Ceballos, 407 F.3d 937, 941 (8th Cir. 2005)
(“Given Rodriguez-Ceballos’s success in handily meeting the first three Olano
conditions, we conclude Rodriguez-Ceballos also has established the fourth condition
for plain error, such that we may exercise our discretion to remand for
resentencing.”).

       In my view, these cases are not faithful to binding Supreme Court precedent.
The Supreme Court could not have been clearer when it held that “a plain error
affecting substantial rights does not, without more, satisfy the [plain-error] standard,
for otherwise the discretion afforded by Rule 52(b) would be illusory.” United States
v. Olano, 507 U.S. 725, 737 (1993). In addition to showing plain error affecting
substantial rights, a defendant must show that the error seriously affects the fairness,
integrity, or public reputation of the judicial proceedings. Under Olano, without such
a showing, we are not authorized to exercise our discretion to correct the error.

       Some of the prior panel opinions state that a defendant makes a sufficient
showing at the fourth prong if he would spend additional time in prison due to the
error. See United States v. Brown, No. 04-4111, 2005 WL 1668336, at *2 (8th Cir.
July 19, 2005) (“We conclude, too, that this is a case in which plain error relief should
be granted because we think that Mr. Brown’s sentence may well have very
significantly exceeded the sentence that the district court would have pronounced if
it had applied the correct rule of law. In other words, to let the sentence stand in the
present circumstances would be a miscarriage of justice.”); United States v.
Killingsworth, Nos. 04-1972/1973, 2005 WL 1560146, at *4 (8th Cir. July 6, 2005)

                                          -11-
(“The prospect that Mr. Williams’s sentence is much more severe than what the
district court would have imposed pursuant to the advisory guidelines and the other
considerations set out in 18 U.S.C. § 3553(a) satisfies this last element of plain
error.”); United States v. Fleck, Nos. 04-1820/1928/1929, 2005 WL 1522738, at *9
(8th Cir. June 29, 2005) (“Because Ken has shown a reasonable probability that he
would have received a more favorable sentence had the district court treated the
guidelines as advisory, refusing to allow him to be resentenced would leave Ken
incarcerated for a longer period than that to which the district court would have
sentenced him under an advisory regime. We find that this would seriously affect the
fairness, integrity, and public reputation of the judicial proceedings that placed Ken
in prison.”); United States v. Valdivia-Perez, No. 03-3987, 2005 WL 1324020, at *1
(8th Cir. June 6, 2005) (“[B]ecause Valdivia-Perez would spend additional time in
prison as a result of the imposed sentence, the fairness, integrity, and public
reputation of judicial proceedings are seriously affected.”); United States v. Plumman,
409 F.3d 919, 932 (8th Cir. 2005) (“Based on the district court’s comments at
sentencing, the district court more than likely would not have imposed life sentences
on Counts I through VI under an advisory Guidelines scheme. Under these
circumstances, affirming the life sentences would ‘seriously affect the fairness,
integrity, or public reputation of the judicial proceedings.’” (quoted source and
internal marks omitted)).

       In my view, these cases are not faithful to binding Eighth Circuit precedent
announced by our court en banc. In United States v. Pirani, 406 F.3d 543, 553-54
(8th Cir 2005) (en banc), the court acknowledged “that the fairness, integrity, and
public reputation of judicial proceedings are seriously affected when a defendant
must spend additional time in prison on account of an illegal sentence,” such as
“when the district court applied the wrong mandatory guidelines range because of
clerical or other errors” (emphasis added). The court held that “Booker error, on the
other hand, presents a different situation[;] . . . the sentence itself is not illegal under
the advisory regime mandated by Booker, only the process the district court used in

                                            -12-
arriving at that sentence.” Id. at 554 (emphasis added). As a result, in cases
involving Booker error, the court prescribed a “fourth-factor inquiry . . . more akin
to United States v. Cotton, [535 U.S. 625 (2002)].” Id.

       Cotton addressed the Apprendi error of failing to allege drug quantity in the
indictment and failing to submit the issue to the petit jury, in violation of the Fifth and
Sixth Amendments. The effect of this error was severe: the maximum lawful
sentence was 20 years in prison, but the district court had sentenced some defendants
to 30 years of imprisonment and other defendants to life in prison. Nonetheless, even
finding that the first two factors of the plain-error test had been satisfied and
assuming arguendo that the third factor had also been satisfied, the Supreme Court
unanimously affirmed the sentences, including life in prison, holding that “the error
did not seriously affect the fairness, integrity, or public reputation of judicial
proceedings.” Cotton, 535 U.S. at 632-33. The Supreme Court scoured the record
as a whole and concluded that the evidence of drug quantity was “overwhelming” and
“essentially uncontroverted.” Id. at 633.

       Likewise, in Booker cases, I believe that we should review the existing record
on appeal to determine whether there is a basis within the 18 U.S.C. § 3553(a) factors
for the district court to impose a lower but still reasonable sentence under advisory
Guidelines. See United States v. Ryder, Nos. 03-3478/3479, 2005 WL 1639460, at
*9 (8th Cir. July 14, 2005) (in conducting the fourth-prong analysis, identifying the
§ 3553(a) factor of age and the § 3553(a)(2)(D) factor of the need for medical care
as factors the district court determined were present but was unable to fully take it
into account due to the mandatory nature of the Guidelines); United States v.
Whipple, Nos. 04-1598/1750, 2005 WL 1630946, at *2 (8th Cir. July 13, 2005)
(same); cf. Rodriguez-Ceballos, 407 F.3d at 941-42 (mentioning during the fourth-
prong discussion that the district court had identified the § 3553(a)(6) factor of the
need to avoid unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct, but was unable to fully take it into

                                           -13-
account due to the mandatory nature of the Guidelines). If no mitigating § 3553(a)
factors were articulated by the district court at sentencing or are apparent elsewhere
in the record, the defendant is not entitled to relief at the fourth-prong of the plain
error test. It does not seriously affect the fairness, integrity, or public reputation of
the judicial proceedings to affirm a sentence within the statutory range and imposed
under Congressionally approved mandatory Guidelines, as has been done tens of
thousands of times between the Congress’s enactment of the Sentencing Reform Act
of 1984 and the Supreme Court’s 2005 decision in Booker, when there is no apparent
basis within the § 3553(a) factors for a lower sentence under advisory Guidelines.
See United States v. Gonzalez-Huerta, 403 F.3d 727, 736-39 (10th Cir. 2005) (en
banc).

        In the instant case, I can discern nothing in the record that would suggest a
reasoned basis within the § 3553(a) factors for imposing a lower sentence on
Betterton if the case were remanded for resentencing under advisory Guidelines. To
the contrary, everything in the record relevant to the § 3553(a) factors suggests that
Betterton richly deserved a sentence at least as harsh, if not harsher, than the one he
received for these—his fourth, fifth, and sixth felony-grade drug-trafficking
offenses—which he committed while on state parole. If we were writing on a clean
slate, I would affirm Betterton’s sentence.

      However, our panel, including me, is bound by the prior panel opinions until
and unless the Supreme Court, or this court en banc, overturns them. With these
observations, I join the court’s opinion and judgment.
                        ______________________________




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