                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 13-1779
                          ___________________________

                               United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                  Willie Frank Stokes

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

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

                            Submitted: December 17, 2013
                                Filed: April 29, 2014

                                    ____________

Before BYE, BRIGHT, and SMITH, Circuit Judges.
                            ____________

SMITH, Circuit Judge.

       Willie Stokes pleaded guilty to one count of possession with intent to distribute
at least 28 grams of a mixture and substance containing cocaine base, in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Because Stokes had two prior felony
convictions, he was designated a "career offender" under U.S.S.G. § 4B1.1.
Consequently, the district court calculated an advisory Guidelines sentencing range
of 188–235 months' imprisonment. Finding that the Guidelines overstated Stokes'
criminal history, the court reduced his criminal history level, resulting in a new
Guidelines range of 168–210 months. The court sentenced Stokes to 168 months—at
the bottom of the revised range. On appeal, Stokes challenges the designation of one
of his prior felonies as a predicate offense for career-offender status. He also contends
that his 168-month sentence is substantively unreasonable and the result of procedural
error. For the reasons stated below, we affirm in part, reverse in part, and remand for
resentencing.

                                     I. Background
       On May 15, 2012, Willie Stokes was indicted on two counts of distributing a
mixture and substance containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(C). The indictment also included an additional count for possession with
intent to distribute at least 28 grams of a mixture and substance containing cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). On November 16, 2012,
Stokes pleaded guilty to the possession-with-intent-to-distribute charge. In exchange,
the government dropped both of the distribution charges, agreed to withhold notice
under 21 U.S.C. § 851 of Stokes' prior felony drug conviction, and agreed not to
pursue further charges. The parties did not agree on a sentence to be imposed, and
both parties acknowledged that Stokes "may be a career offender."

      Since 2002, Stokes has had multiple criminal convictions, including four
misdemeanor marijuana-possession offenses. Two of his convictions are particularly
relevant to his sentence and this appeal. First, in 2006, Stokes was convicted of
delivering less than 50 grams of cocaine, a felony, in violation of Michigan Code §
333.7401(2)(a)(iv). Second, in 2009, Stokes was convicted of third-degree fleeing
and eluding police, a felony, in violation of Michigan Code § 257.602a(3)(a).1


      1
        This offense is a fourth-degree felony. Mich. Code § 257.602a(1). It becomes
a third degree felony in the presence of one of an enumerated list of aggravating

                                          -2-
       The district court declared Stokes to be a career offender under § 4B1.1(a) of
the Sentencing Guidelines. The court determined that both the 2006 cocaine-
distribution conviction and the 2009 eluding conviction represent predicate offenses
for career offender status.

      As a career offender, Stokes' Guidelines criminal history category is VI. See
U.S.S.G. § 4B1.1(b). The district court calculated an offense level of 31, resulting in
a Guidelines sentencing range of 188–235 months' imprisonment. Stokes moved for
a downward departure, contending that category VI overstated his criminal history.
The district court agreed and departed down to category V. This resulted in a new
sentencing range of 168–210 months.

       Stokes requested a downward variance from the Guidelines range. During the
sentencing hearing, the government suggested that Stokes has "been involved in the
drug game for probably the last ten years," and that his spotty employment history is
"based probably largely on his involvement in drug distributing." The district court
expressed concern about Stokes' drug history and lack of employment, eventually
stating "[t]he fact that you're not working for the last ten years tells me you were
making your money selling drugs, probably, because otherwise you wouldn't have
survived the last ten years." The district court denied Stokes' request for a variance
and sentenced him to 168 months' imprisonment—the bottom of the Guidelines
range.




factors. Id. § 257.602a(3)(a)-(c). There is some dispute as to whether Stokes was
convicted under § 257.602a(3)(a) (eluding resulting in a collision or accident) or §
257.602a(3)(b) (eluding in an area where the speed limit is 35mph or less). The
charging document cites § 257.602a(3)(a), but it provides the accompanying text for
§ 257.602a(3)(b). Because we hold that the offense of eluding is a crime of violence,
we need not address this factual dispute.

                                         -3-
                                      II. Discussion
       Stokes raises two arguments on appeal. First, he argues that the district court
erroneously found that third-degree eluding under Michigan law is a "crime of
violence," and therefore erroneously applied U.S.S.G. § 4B1.1. Second, he contends
that the district court procedurally erred by basing his sentence, in part, on conjecture
that he has been selling drugs for ten years.

                          A. Career Offender designation
      "The court of appeals reviews de novo a district court's determination that a
conviction constitutes a crime of violence under the career offender sentencing
guideline." United States v. Williams, 690 F.3d 1056, 1067 (8th Cir. 2012) (citing
United States v. Craig, 630 F.3d 717, 723 (8th Cir. 2011)).

      A defendant is a career offender if (1) the defendant was at least
      eighteen years old at the time the defendant committed the instant
      offense of conviction; (2) the instant offense of conviction is a felony
      that is either a crime of violence or a controlled substance offense; and
      (3) the defendant has at least two prior felony convictions of either a
      crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a).

      Stokes does not dispute that the first and second elements are met or that his
2006 cocaine-distribution conviction is a predicate offense. The sole issue with
respect to Stokes' career-offender status is whether his third-degree eluding
conviction is a crime of violence and thus constitutes a predicate offense.

        In United States v. Bartel, we held that eluding the police under Minnesota law
is a crime of violence. 698 F.3d 658 (8th Cir. 2012). No meaningful difference exists
between the Minnesota statute that we addressed in Bartel and the Michigan statute



                                          -4-
that we address here.2 We concluded in Bartel that vehicular flight from the police
"presents a serious potential risk of physical injury to another, and is therefore a
violent felony under the ACCA." Id. at 662 (quotations omitted). "We have never
recognized a distinction between" "crime of violence" in the Sentencing Guidelines
and "violent felony" in the ACCA. United States v. Williams, 537 F.3d 969, 971 (8th
Cir. 2008) (citation omitted). Applying Bartel, we hold that vehicular flight, as
described by Michigan Code § 257.602a(1), is a crime of violence, and is therefore
a predicate offense for career-offender status under the Sentencing Guidelines.




      2
        Minnesota Statute § 609.487, subdivision 3 states, in relevant part, "Whoever
by means of a motor vehicle flees or attempts to flee a peace officer who is acting in
the lawful discharge of an official duty, and the perpetrator knows or should
reasonably know the same to be a peace officer, is guilty of a felony. . . " Subdivision
1 defines "flee" as "to increase speed, extinguish motor vehicle headlights or
taillights, refuse to stop the vehicle, or use other means with intent to attempt to elude
a peace officer following a signal given by any peace officer to the driver of a motor
vehicle."

      Michigan Statute § 750.479a(1) provides:

      An operator of a motor vehicle or vessel who is given by hand, voice,
      emergency light, or siren a visual or audible signal by a police or
      conservation officer, acting in the lawful performance of his or her duty,
      directing the operator to bring his or her motor vehicle or vessel to a
      stop shall not willfully fail to obey that direction by increasing the speed
      of the vehicle or vessel, extinguishing the lights of the vehicle or vessel,
      or otherwise attempting to flee or elude the police or conservation
      officer. This subsection does not apply unless the police or conservation
      officer giving the signal is in uniform and the officer's vehicle or vessel
      is identified as an official police or department of natural resources
      vehicle or vessel.


                                           -5-
                              B. Sentencing Error
      Stokes contends that even if he is a career offender under the Guidelines, his
168–month sentence was the result of procedural error, and he therefore must be
resentenced. We agree.

             When we review the imposition of sentences, whether inside or
      outside the Guidelines range, we apply a deferential abuse-of-discretion
      standard. We must first ensure that the district court committed no
      significant procedural error. 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) (emphasis
added) (quotations and citations omitted).

      Stokes concedes that he did not object to any alleged procedural errors during
sentencing.

      Because [Stokes] did not make a timely objection on these specific
      claims at sentencing, we review only for plain error. United States v.
      Miller, 557 F.3d 910, 916 (8th Cir. 2009). "To establish plain error, [a
      defendant] must prove (1) there was error, (2) the error was plain, and
      (3) the error affected his substantial rights." Id. (citing United States v.
      Olano, 507 U.S. 725, 732 (1993)). "An error affects a substantial right
      if the error was prejudicial," but an error is prejudicial in the sentencing
      context "only if there is a reasonable probability that the defendant
      would have received a lighter sentence but for the error." Id.

United States v. Grimes, 702 F.3d 460, 470 (8th Cir. 2012) (second alternation in
original).

                                          -6-
        Stokes focuses on the following statement from the court during the sentencing
hearing: "The fact that you're not working for the past ten years tells me you were
making your money selling drugs, probably, because otherwise you wouldn't have
survived the last ten years." Stokes argues that this conclusion lacked factual support
in the record. According to Stokes, rather than use record evidence, the court misused
a statement government counsel made; at best, the conclusion rests on speculation
from the contents of the Presentence Report (PSR). Stokes' characterization is borne
out by the PSR and the transcript of the sentencing hearing.

       Stokes has five prior drug-related convictions. Four were for simple possession
of marijuana, and one, in 2006, was for delivery of cocaine. The PSR does not record
or suggest a history of selling drugs beyond the 2006 conviction. The record shows
that Stokes had been unemployed for all but eight months of the previous ten years.
During the preparation of the PSR, Stokes claimed that he had been supported by
family members and a gambling habit over the previous ten years. The PSR notes that
Stokes' "basic needs were always provided" while his parents were raising him.

       During the sentencing hearing, the government stated that "it's the
Government's position that [Stokes] didn't have a solid—a solid employment history
up until this point, based probably largely on his involvement in drug distributing."
The district court noted Stokes' nearly non-existent employment history and his prior
drug convictions and concluded that Stokes was "selling drugs, probably" over the
prior decade.

       The district court "may accept any undisputed portion of the [PSR] as a finding
of fact." United States v. Lee, 570 F.3d 979, 982 (8th Cir. 2009) (quoting United
States v. Razo-Guerra, 534 F.3d 970, 975 (8th Cir. 2008). This is different; the PSR
contained no factual allegation that Stokes sold drugs for ten years. Rather, both the
court and the government stated opinions that Stokes was "probably" selling drugs
over the last decade based almost entirely on his lack of employment. Long-term

                                         -7-
unemployment might be consistent with drug sales, but it certainly does not establish
such. On this record, we have a firm conviction that a mistake has been made. Stokes
admitted to long-term abuse of marijuana. But drug abuse is not enough to infer that
the user was also selling drugs—certainly not that he was doing so as a sole means
of survival. Nor are we willing to agree that one drug delivery conviction six-and-a-
half years ago supports the inference of a decade-long drug distribution career.

       The district court's conclusion that Stokes had sold drugs for ten years is clearly
erroneous because the record facts simply do not support it. Given the paucity of
factual support for the conclusion, the error is plain. The assumed decade of drug
dealing became a principal basis for denying Stokes' requested downward variance.
Thus, the error affected his substantial rights. While not certain, we conclude that
there is a "reasonable probability" that Stokes' sentence would have been lower had
the court not committed the error, and we therefore reverse.

                                III. Conclusion
      Accordingly, we reverse and remand for reconsideration of Stokes' request for
a downward variance. In all other respects the judgment of the district court is
affirmed.

BRIGHT, Circuit Judge, concurring.

      I concur with the majority’s result. Because we are remanding this case for
resentencing, I write separately to express my concerns that Willie Stokes’ original
168-month sentence may be excessive for his drug crime and criminal past.

      This case concerns a 29-year-old man with a criminal history that began when
he was 11. But notably, Stokes’ criminal convictions do not include violent offenses
against persons. Rather, his criminal convictions include drug offenses, driving
offenses, and a retail fraud offense. And although Stokes may have committed a

                                           -8-
crime of violence according to caselaw, which in this instance did not result in any
injuries, that does not make him an inherently violent man. Stokes’ presentence
report depicts a man with a substance abuse problem who dropped out of school in
the ninth grade with a 0.40 GPA. Stokes is a drug abuser who needs treatment—not
a lengthy confinement.

       Stokes’ case illustrates the need for what United States Attorney General Eric
H. Holder, Jr. calls a new approach to federal sentencing because, as it stands today,
“our system is in too many respects broken.” Eric Holder, Attorney General of the
United States, United States Department of Justice, Remarks at the Annual Meeting
of the American Bar Association’s House of Delegates (Aug. 12, 2013), available at
http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html. As
Attorney General Holder explained, widespread incarceration is unsustainable
because “[i]t imposes a significant economic burden—totaling $80 billion in 2010
alone—and it comes with human and moral costs that are impossible to calculate.”
Id. In those remarks, Attorney General Holder emphasized that “with an outsized,
unnecessarily large prison population, we need to ensure that incarceration is used to
punish, deter, and rehabilitate – not merely to warehouse and forget.” Id. He added:
“By reserving the most severe penalties for serious, high-level, or violent drug
traffickers, we can better promote public safety, deterrence, and rehabilitation—while
making our expenditures smarter and more productive.” Id.

      Stokes’ actions do not warrant such a severe penalty as a 14-year (168-month)
sentence. The Guidelines may categorize Stokes as a career offender, but that does
not make him a high-level or violent drug trafficker deserving of a lengthy
incarceration that will do little to rehabilitate him. The government will spend an
estimated $400,000 to incarcerate Stokes for 14 years.3 Sentencing Stokes to a


      3
       Stokes’ presentence report includes estimated costs from the Administrative
Office of the United States Courts, dated April 10, 2012, depicting an expected

                                         -9-
lengthy prison term does a disservice to taxpayers, the government, and to Stokes
himself.

      Thus, on remand, the district court should apply the factors set forth in 18
U.S.C. § 3553(a) while considering the Attorney General’s views and resentence
Stokes accordingly.4
                     ______________________________




annual cost of $28,893.40 to house an inmate at a Bureau of Prisons Facility.
      4
       The 18 U.S.C. § 3553(a) factors include:
      1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
      (2) the need for the sentence imposed
             (A) to reflect the seriousness of the offense, to promote respect for the
             law, and to provide just punishment for the offense;
             (B) to afford adequate deterrence to criminal conduct;
             (C) to protect the public from further crimes of the defendant; and
             (D) to provide the defendant with needed educational or vocational
             training, medical care, or other correctional treatment in the most
             effective manner;
      (3) the kinds of sentences available;
      (4) the kinds of sentence and the sentencing range established for--
             (A) the applicable category of offense committed by the applicable
             category of defendant as set forth in the guidelines—
      ....
      (5) any pertinent policy statement—
      ....
      (6) the need to avoid unwarranted sentence disparities among defendants with
      similar records who have been found guilty of similar conduct; and
      (7) the need to provide restitution to any victims of the offense.

                                        -10-
