                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-2726
                        ___________________________

                             United States of America

                                      Plaintiff - Appellee

                                         v.

                               John Henry Edmonds

                                    Defendant - Appellant
                                  ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                            Submitted: March 15, 2019
                              Filed: April 15, 2019
                                  ____________

Before SHEPHERD, ERICKSON, and KOBES, Circuit Judges.
                         ____________

ERICKSON, Circuit Judge.

       John Henry Edmonds pled guilty to five counts of distribution of a controlled
substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The district
court1 sentenced Edmonds to concurrent terms of 80 months’ imprisonment on each


      1
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
count. Edmonds appeals, arguing the district court erred when it departed and varied
upward from the advisory United States Sentencing Guidelines (“Guidelines” or
“USSG”) range. We affirm.

I.    Background

      Edmonds pled guilty to five counts of distributing a controlled substance. Each
offense involved a controlled buy with the same confidential informant. The buys
occurred in July and August 2017. The controlled substance Edmonds sold consisted
of heroin with trace amounts of furanyl fentanyl, carfentanil, or both.

       When calculating the applicable Guidelines range, the district court determined
the offenses involved a total amount of 5.929 grams of a fentanyl analogue, which
corresponded under the Guidelines to a base offense level of 18. Edmonds received
credit for accepting responsibility and timely notification of his intent to change his
plea, which resulted in a total offense level of 15. With 40 criminal history points,
Edmonds was in Criminal History Category VI, which yielded a sentencing range of
41 to 51 months. The government moved for an upward variance based on the
potency and dangerousness of carfentanil and furanyl fentanyl as well as an upward
departure under USSG § 4A1.3 based on Edmonds’ understated criminal history.

      The district court granted both motions. It found a 15-month upward departure
from the high end of the applicable Guidelines range was warranted due to Edmonds’
criminal history and an 18-month upward variance was warranted because of the
potency and societal impact of carfentanil and furanyl fentanyl. The court reduced
the sentence it would have otherwise imposed by three months for the “hard time”
Edmonds had served while these charges were pending and gave Edmonds credit for
one month of time served in state custody. The court imposed an 80-month term of
imprisonment on each count, to run concurrently. Edmonds timely appeals the
sentences imposed.

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II.   Discussion

      Edmonds argues the district court improperly and unexpectedly doubled his
sentence when it granted motions for an upward variance and an upward departure.
Although Edmonds argued for a within-Guidelines sentence, he did not object after
the court announced its findings regarding either the upward departure or the
variance. Accordingly, we review for plain error.2 United States v. Mees, 640 F.3d
849, 854 (8th Cir. 2011). “To establish plain error, [Edmonds] must show that there
was error, that the error was plain, and that the error affected his substantial rights.”
Id. An error affects substantial rights if there is “a ‘reasonable probability,’ based on
the appellate record as a whole, that but for the error he would have received a more
favorable sentence.” United States v. Linderman, 587 F.3d 896, 899 (8th Cir. 2009)
(quoting United States v. Pirani, 406 F.3d 543, 552 (8th Cir. 2005)).

       We find no error in the district court’s sentencing decisions. When deciding
to depart upward due to Edmonds’ extensive criminal history, the court did not
consider merely the number of prior convictions or the points calculated according
to the Guidelines. Instead, the court analyzed the seriousness of the crimes. In
particular, the court noted the assault on an ex-girlfriend in 2011 that resulted in a no-
contact order, which Edmonds violated 255 times within four months. The court also
noted Edmonds’ inability to remain law-abiding while on supervised release.

      Our review of Edmonds’ criminal history convinces us that the district court
did not err when it increased Edmonds’ sentence based on his lengthy and serious


      2
        The result would be the same if we reviewed the Guidelines enhancements
under the abuse-of-discretion standard. The district court considered the appropriate
factors, committed no clear error of judgment in weighing the factors, and provided
an adequate explanation for its sentence. See United States v. Feemster, 572 F.3d
455, 461 (8th Cir. 2009) (setting forth the factors in an abuse-of-discretion analysis).

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criminal history. Edmonds was 35 years old. His adult criminal history included
multiple convictions for assault, fleeing police officers, controlled substance offenses,
driving under the influence as well as one burglary conviction. Edmonds also
routinely violated the terms of probation or supervised release. We are satisfied the
district court considered the appropriate factors and gave an adequate explanation for
its decision to impose a 15-month upward departure from the advisory Guidelines
range.

      Turning to the upward variance, the court focused on the seriousness of the
offenses, a factor set forth in 18 U.S.C. § 3553(a). The heroin Edmonds sold to a
confidential informant was laced with carfentanil, furanyl fentanyl, or both. The
Presentence Investigation Report (“PSIR”) noted that between January and April,
2017 carfentanil had been attributed to 11 overdose deaths in the Minneapolis,
Minnesota, metropolitan area. While Edmonds contested whether he was responsible
for any deaths, he did not object to this portion of the PSIR. Likewise, Edmonds did
not object to the portion of the PSIR that estimated fentanyl is 50 to 100 times more
potent than morphine. By extrapolation, carfentanil is estimated to be 100 to 200
times more potent than fentanyl. The undisputed evidence established that Edmonds
sold heroin on multiple occasions that contained fentanyl analogs unsafe for human
consumption.

       “The district court has wide latitude to weigh the § 3553(a) factors in each case
and [to] assign some factors greater weight than others.” United States v. Bridges,
569 F.3d 374, 379 (8th Cir. 2009). Absent the consideration of whether to give
Edmonds credit for time spent in state custody and while being held in a state jail on
these charges, the court explained that “anything less than 84 months will promote
massive disrespect” and “not be a fair sentence.” Giving “due deference to the
district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance,” Gall v. United States, 552 U.S. 38, 51 (2007), we conclude the court did



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not plainly error in imposing an 18-month upward variance from the advisory
Guidelines range.

      Finally, as to Edmonds general challenge to the length of his sentence, we
conclude the district court did not abuse its discretion by imposing a substantively
unreasonable sentence. The concurrent terms of 80 months’ imprisonment were
within the district court’s discretion to impose and reasonable on this record that
contained undisputed evidence of Edmonds’ extensive criminal history, his inability
to remain law-abiding, and the seriousness and great risk of death caused by the sale
of heroin laced with fentanyl or carfentanil.

III.   Conclusion

       We affirm the judgment of the district court.
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