                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 11-3414
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
Wayman Simms,                            *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: June 15, 2012
                                  Filed: September 27, 2012
                                   ___________

Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
                          ___________

LOKEN, Circuit Judge.

       Wayman Simms pleaded guilty to conspiracy to distribute and possession with
intent to distribute more than one kilogram of heroin in violation of 21 U.S.C.
§§ 841(a)(1) and 846. The Presentence Investigation Report recommended assessing
seven criminal history points for three prior state court convictions, which placed
Simms in criminal history category IV under the advisory sentencing guidelines. The
district court1 overruled Simms’s timely objection, resulting in an advisory guidelines
sentencing range of 84-105 months in prison, and sentenced Simms to 84 months in

      1
        The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.
prison. He appeals that sentence, arguing the district court committed procedural
sentencing errors in assessing the criminal history points and in refusing to grant his
request for a downward sentencing departure. We affirm.

                                          I.

       Simms first argues the district court erred when it assessed three criminal
history points each for his two prior Missouri felony convictions for stealing over
$150 in December 1991 and again in October 1993. In determining criminal history
category, the district court must count any prior sentence exceeding one year and one
month “that resulted in the defendant being incarcerated” within fifteen years of his
“commencement of the instant offense.” U.S.S.G. § 4A1.2(e)(1). If parole was
granted but then revoked, the “date of last release from incarceration on such
sentence” determines whether a conviction falls within this period. § 4A1.2(k)(2)(A).
Here, the plea agreement recited that Simms’s participation in the conspiracy to
distribute heroin began no later than May 2010. Simms argues that his conviction for
the 1991 theft falls outside the 15-year limitation, and that the 1993 theft should not
be considered a separate offense. His timely objections to the PSR required the
government to prove disputed facts by a preponderance of the evidence. United
States v. Cochrane, 608 F.3d 382, 383 (8th Cir. 2010). “Decisions regarding offenses
counted in a criminal history calculation are factual determinations subject to clear-
error review.” United States v. Townsend, 408 F.3d 1020, 1022 (8th Cir. 2005),
citing United States v. Paden, 330 F.3d 1066, 1067 (8th Cir. 2003).

      At sentencing, in support of the recommended assessments, the government
introduced a Missouri Department of Corrections (DOC) “Face Sheet” summarizing
Simms’s incarceration for the two theft offenses, and testimony by Senior U.S.
Probation Officer John Ross, a former employee of the Missouri Board of Probation
and Parole who analyzed the Face Sheet and other DOC documents and prepared the
PSR recommendation to assess three criminal history points for each conviction under

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§ 4A1.1(a). For the 1991 theft, based on his review of the Face Sheet and other
documents, Probation Officer Ross testified that Simms was sentenced on August 28,
1992 to a three-year prison term commencing May 11, 1992; that he was paroled on
September 10, 1993 but was returned to DOC custody on December 6, 1993 for
violating parole by committing the second offense; and that his sentence for the first
offense was “completed 6/23/95.”2 For the October 1993 theft, Ross testified that
Simms was sentenced on May 31, 1994 to a four-year prison term commencing
December 6, 1993; that he was released on parole on July 11, 1995; and that he was
discharged from that sentence on December 5, 1997. On cross examination, Ross
denied that Simms was serving both sentences after December 6, 1993, explaining
that, while the second theft occurred in October 1993, Simms could not begin serving
the second sentence until it was imposed in May 1994. Rather, Simms was returned
to custody on the first sentence in December 1993; the court imposing the second
sentence in May 1994 then credited that custody by ruling that the second four-year
sentence commenced on December 6, 1993.

       After considering this evidence and the arguments of counsel, the district court
overruled Simms’s objections to a three-point assessment for each theft conviction.
The convictions must be counted separately, the court explained, because they “were
imposed for offenses that were separated by an intervening arrest (i.e. the defendant
is arrested for the first offense prior to committing the second offense).” U.S.S.G.
§ 4A1.2(a)(2). Simms argues on appeal, as he did to the district court, that there was
no intervening arrest between the revocation of parole in December 1993 and
imposition of the second sentence in May 1994. However, as the district court noted,
the issue is whether the theft offenses were separated by an intervening arrest. Simms
was arrested on December 20, 1991 for the first theft, long before he committed the


      2
      June 23, 1995 was three years from the commencement of this sentence on
May 11, 1992, plus 44 days that were added to the sentence for an escape infraction
in March 1993.

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second offense in October 1993. “Under the guidelines . . . an intervening arrest ends
the inquiry.” United States v. Crippen, 627 F.3d 1056, 1066 (8th Cir. 2010), cert.
denied, 131 S. Ct. 2914 (2011). Both sentences fall within the applicable fifteen-year
period, the court ruled, because the revocation of Simms’s parole on the first sentence
in December 1993 resulted in his incarceration until that sentence was completed on
June 23, 1995, and he was not paroled on the second sentence until July 11, 1995;
both dates are less than fifteen years before he commenced this offense.

       On appeal, Simms argues that the government failed to prove that his
incarceration on the first theft conviction extended beyond the revocation of parole
on December 6, 1993, more than fifteen years before commencement of this offense,
like the failure of proof that caused us to remand for resentencing in United States v.
Covington, 133 F.3d 639, 643 (8th Cir. 1998). But in Covington, the government
introduced no evidence that any parole revocation sentence was imposed that would
have extended incarceration into the fifteen-year period (except for an “unhelpful”
docket sheet provided at oral argument). Id. at 643 & n.4. Here, on the other hand,
the government introduced the DOC Face Sheet and supporting testimony by a
qualified witness evidencing that Simms was returned to custody in December 1993
and remained in custody on the first sentence until June 1995. The district court did
not clearly err by crediting this evidence and assessing three criminal history points
for each theft conviction.

                                          II.

      Simms next argues that the district court erred in assessing one criminal history
category point for his 2006 conviction for petty larceny in violation of the St. Louis
City Municipal Code. After the government introduced police and municipal court
records and additional testimony by Probation Officer Ross in support of this
assessment, the district court overruled Simms’s objection, concluding that this
conviction was not for an offense excluded under U.S.S.G. § 4A1.2(c)(1) or (2). On

                                          -4-
the merits, this issue was made more complicated by a 2007 amendment to the
Guidelines overruling our prior cases applying § 4A1.2(c). See United States v.
Barrientos, 670 F.3d 870, 871-72 (8th Cir. 2012). But we need not address the merits
in this case because the district court expressly stated that “even if I were to find that
the last criminal history point for the petty offense conviction should not be counted
and that the defendant was placed in Criminal History Category III, I would still
believe that in this case a sentence of 84 months would be sufficient.” Accordingly,
the error, if any, was harmless. See United States v. Woods, 670 F.3d 883, 886-87
(8th Cir. 2012); United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005).

                                           III.

       Finally, Simms argues the district court abused its discretion when it denied his
motion for a downward departure under U.S.S.G. § 4A1.3(b). “A district court’s
refusal to grant a downward departure under the sentencing guidelines is
unreviewable unless the court had an unconstitutional motive in denying the request
or failed to recognize that it had the authority to depart downward.” United States v.
Dixon, 650 F.3d 1080, 1084 (8th Cir. 2011). Here, the district court expressly
recognized its authority to depart downward, and Simms does not argue the court had
an unconstitutional motive in denying his request. As Simms does not argue his
within-range sentence is substantively unreasonable, we need not address that issue.
United States v. Fischer, 551 F.3d 751, 756 (8th Cir. 2008).

      The judgment of the district court is affirmed.
                     ______________________________




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