                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-2182
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                            Lorando Demond Williams

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

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

                             Submitted: April 13, 2020
                              Filed: August 7, 2020
                                  ____________

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

LOKEN, Circuit Judge.

       Conducting surveillance based on a tip that Ronald Buchanan was distributing
drugs from a white Mercedes-Benz in a church parking lot, Des Moines police
officers observed two men exiting a white Mercedes-Benz to meet with occupants of
vehicles driving in and out of the parking lot. Suspecting these were drug
transactions, two officers approached the Mercedes-Benz and detected a strong odor
of marijuana. Buchanan was in the driver’s seat and Lorando Williams was in the
passenger’s seat. The officers searched the car and the two men. They found $313
and 11.97 grams of cocaine base on Williams’s person. In the driver’s door pocket,
they found a baggie containing 43.8 grams of marijuana and a Crown Royal bag
containing 27.32 grams of cocaine, 18.59 grams of cocaine base, and 0.7 grams of
marijuana. A baggie in the front passenger seat contained 2.87 grams of cocaine, and
a bottle in the car’s center console contained 86 grams of codeine. Williams pleaded
guilty to possession with intent to distribute cocaine base, admitting he possessed the
drugs found on his person. See 21 U.S.C. § 841(a)(1), (b)(1)(C).

       At the May 2019 sentencing, the district court1 found that Williams’s relevant
offense conduct included possession of all drugs found in the car because they were
part of “jointly undertaken criminal activity” with Buchanan. This resulted in a base
offense level of 24 and an advisory guidelines sentencing range of 77 to 96 months
imprisonment. The court imposed a 77 month sentence, rejecting Williams’s request
for a downward variance to account for any future state court sentence that would
follow revocation of the parole Williams was serving for an Iowa drug and firearm
conviction. Williams appeals, arguing the district court (i) committed plain
procedural sentencing error by failing to rule on his requests for concurrent sentences
and for a federal sentence reduction to account for “potential future actions of Iowa’s
Parole Board,” and (ii) clearly erred in attributing drugs found in the driver’s door
pocket to Williams. We affirm.

                        I. The Concurrent Sentence Issue.

       Williams was serving parole for the 2015 Iowa conviction when he committed
this federal offense. Parole had not been revoked at the time of his federal
sentencing. Had parole been revoked, the advisory guidelines recommend “that the


      1
       The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.

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sentence for the instant offense be imposed consecutively to the sentence imposed for
the revocation.” USSG § 5G1.3, comment. (n.4(C)). Here, revocation was only
anticipated. In these circumstances, the court “has discretion to determine whether
a federal sentence should run concurrently with or consecutively to an anticipated
state sentence.” United States v. Hall, 825 F.3d 373, 375 (8th Cir. 2016), citing
Setser v. United States, 566 U.S. 231, 235-36 (2012). A district court should exercise
this discretion “intelligently.” Setser, 566 U.S. at 242 n.6.

       In his objections to the Presentence Investigation Report (“PSR”), Williams
requested that his sentence “run fully concurrent” to the 2015 Iowa sentence. His
Sentencing Memorandum explained that, if the State of Iowa proceeds to revoke
parole, the Bureau of Prisons “is likely to deny credit for any time for which he is
awarded Iowa credit.” Therefore, to credit Williams “with all the time he has served,”
the Court should “order the sentences run concurrently, select the appropriate
[federal] sentence, then reduce the sentence by the number of months between his
first incarceration date of October 23, 2018 and the date of sentencing.” The
Probation Officer responded: “Because the state sentence has not been revoked, the
Court may run the term for the instant offense consecutive or concurrent to the state
offense; however, the Court may also exercise its discretion and refrain from any
such order” (emphasis added).

       At sentencing, the district court asked defense counsel to clarify the “5G1.3
argument” regarding an anticipated state prison term. Counsel responded that
Williams’s parole had not yet been revoked “but he may be subject to revocation.
The court has the discretion to run this sentence concurrently or consecutively with
that [under USSG § 5G1.3(d)].” Counsel urged the court to “use that tool as another
means . . . to exercise its discretion to give the defendant a reasonable sentence in this
case.” Turning to the 18 U.S.C. § 3553(a) sentencing factors, counsel then argued
that “the court should look at something substantially lower than what’s
recommended under the advisory guideline range.” Government counsel, in urging

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a sentence in the middle of the guidelines range, 86 months, responded that
Application Note 4(C) to § 5G1.3 recommends that “the federal sentence be imposed
consecutive to any revocation of parole.” At the conclusion of these arguments, the
district court stated, “based on the 3553(a) analysis,” that it would impose a sentence
at the bottom of the advisory range -- 77 months imprisonment with credit for time
served since October 23, 2018. As to whether the State of Iowa may revoke parole
and impose an anticipated term of imprisonment, “the court in its discretion is not
going to address that.” Defense counsel made no objection to this last ruling.

       On appeal, Williams puts a new spin on this aspect of the sentencing
proceedings. He now contends that the district court committed procedural error by
failing to rule on his “objections” regarding the anticipated revocation of parole and
his request for a downward variance on this ground. He asserts the district court “did
not demonstrate an awareness that it was or might be consigning Williams to serve
consecutive sentences,” “did not address at all Williams’s concern about the possible
parole revocation,” and “appears not even to have addressed . . . whether Williams
might be deemed by Iowa . . . to be in primary state custody” after his arrest and “the
effect that this determination might have on the [Bureau of Prisons execution of the]
sentence [the court] imposed.” This contention insults the intelligence of one of our
most experienced sentencing judges. Though perhaps creative, it is also without
merit for several reasons.

       First, in exercising discretion not to address Williams’s request that the
sentence be made concurrent with an anticipated state sentence, the district court
adopted the Probation Officer’s recommendation that it “refrain from any such order.”
Thus, the premise for Williams’s contention that the district court erred in failing to
rule is the assertion, first made in his brief on appeal without supporting authority,
that the Probation Officer’s “view, unsupported by legal authority . . . is incorrect.”
That is an issue of law, known to defense counsel when the district court ruled. As



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Williams did not raise this issue to the district court, it was not preserved for appeal.
See United States v. Collier, 585 F.3d 1093, 1097 (8th Cir. 2009).

       Second, the Probation Officer’s view is not “unsupported by legal authority.”
Rather, it is supported by the most powerful of authorities, the Supreme Court of the
United States. In Setser, after stating that a district court should exercise its
discretion intelligently when dealing with an anticipated state sentence, the Court
stated: “In some situations, a district court may have inadequate information and may
forbear.” 566 U.S. at 242 n.6 (emphasis added); see United States v. Davis, 859 F.3d
572, 575 (8th Cir. 2017) (“The district court did not err by expressly not considering
the fact that [the defendant’s] probation could possibly be revoked,” citing Setser.).

       Third, even without this controlling authority, it should go without saying that
one way to exercise discretion is to decline to take up an issue because the proper
exercise of discretion turns on future events. The district court clearly understood its
discretionary authority -- identifying USSG § 5G1.3(d) as the relevant guideline --
and chose “in its discretion” to forbear for this reason. We review that decision for
abuse of discretion. See Hall, 825 F.3d at 375-76. Labeling it a failure-to-rule
procedural error is ludicrous.

       Finally, Williams does not argue the district court abused its discretion, and
with good reason. Williams urged the district court to vary downward from the
within-range sentence the court thought appropriate, applying the § 3553(a)
sentencing factors, based on actions the Iowa Board of Parole, an Iowa state court,
and the federal Bureau of Prisons might take in the future. Failure to explain why it
did not vary downward for this reason when Williams did not request further
explanation was neither an abuse of discretion nor plain error. See, e.g., United
States v. Lee, 553 F.3d 598, 600-01 (8th Cir. 2009).




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                            II. The Drug Quantity Issue.

      The PSR recommended that all drugs found in the car should be attributed to
Williams in determining his offense conduct. Williams objected that only the drugs
found on his person should be included. In response, the Probation Officer noted the
relevant conduct provisions, USSG § 1B1.3(a)(1)(A) and (B), and stated:

      In response to a complaint of Buchanan distributing drugs from a church
      parking lot, law enforcement officers (LEO) initiated surveillance and
      observed Buchanan and the defendant entering and exiting a Mercedes-
      Benz while multiple vehicles came and went from the church parking lot
      with the occupants appearing to be meeting with Buchanan and the
      defendant. LEO believed these actions to be consistent with drug
      transactions. Therefore, the drugs in the Mercedes-Benz, whether
      possessed by Buchanan, the defendant, or both were within the scope of
      the jointly undertaken criminal activity, in furtherance of the offense,
      and reasonably foreseeable in connection with the distribution of drugs.
      As a result, defendant is attributed all the drugs in the vehicle.

At sentencing, the district court adopted the Probation Officer’s reasoning and
overruled Williams’s drug quantity objection.

       On appeal, Williams argues this drug quantity finding lacked a sufficient
factual basis to attribute the drugs found in the driver’s door pocket to Williams under
governing relevant conduct principles. We review the district court’s quantity finding
for clear error. See United States v. Escobar, 909 F.3d 228, 246 (8th Cir. 2018)
(standard of review). The government argues that unobjected-to facts recited in the
PSR support attributing the drugs in the driver’s door pocket to Williams and, in any
event, any drug quantity error was harmless.

      The Guidelines include as relevant conduct “all acts or omissions of others that
were (i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance

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of that criminal activity, and (iii) reasonably foreseeable in connection with that
criminal activity that occurred during the commission of the offense of conviction.”
USSG § 1B1.3(a)(1)(B). Application Note 3(A) defines “jointly undertaken criminal
activity” as “a criminal plan, scheme, endeavor, or enterprise undertaken by the
defendant in concert with others, whether or not charged as a conspiracy.”

       Focusing on the fact that Williams in pleading guilty only admitted intent to
distribute the cocaine found on his person, and on the PSR statement that Buchanan
admitted knowledge of the Crown Royal bag and baggie found in the driver’s door
pocket, Williams argues “there was insufficient basis for the district court to conclude
that Buchanan had been dealing drugs along with Williams as part of a jointly
undertaken criminal activity.” But this focuses the issue too narrowly. In
determining the scope of “jointly undertaken criminal activity,” the district court
“may consider any explicit agreement or implicit agreement fairly inferred from the
conduct of the defendant and others.” USSG § 1B1.3, comment. (n.3(B)); see United
States v. Sacus, 784 F.3d 1214, 1219-20 (8th Cir. 2015). Here, as the Probation
Officer noted, Williams and Buchanan were jointly engaged in selling drugs to
multiple buyers from the white Mercedes-Benz. Even if they distributed different
drugs and each brought his own supply and would keep the proceeds of his individual
sales, the district court did not clearly err in finding that this was jointly undertaken
criminal activity and therefore the total quantity of unsold drugs found in the car
should be attributed to each participant. See Escobar, 909 F.3d at 246-47.

       We also agree with the government that any error in determining drug quantity
for sentencing purposes was harmless. The district court expressly stated, “if I’ve
erred in the advisory guideline, I would sentence the defendant to 77 months based
on the § 3553(a) analysis. I always think . . . drug quantity is a poor substitute for
culpability here, and I don’t think that the guideline about drug quantity has much
relationship to the sentence that I find to be sufficient but not greater than necessary.”
We have repeatedly held that an error in applying the guidelines is harmless if the

                                           -7-
district court in explaining the sentence “makes clear that the judge based the
sentence . . . on factors independent of the Guidelines.” United States v. McGee, 890
F.3d 730, 737 (8th Cir. 2018) (quotation omitted).

      The judgment of the district court is affirmed.
                     ______________________________




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