                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3588
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                               Jeriel Malachi Brooks

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
               for the Eastern District of Missouri - Cape Girardeau
                                  ____________

                             Submitted: April 11, 2013
                               Filed: July 18, 2013
                                 ____________

Before LOKEN and GRUENDER, Circuit Judges, and WIMES*, District Judge.
                         ____________

LOKEN, Circuit Judge.

      Jeriel Brooks pleaded guilty to conspiring to manufacture fifty grams or more
of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district




      *
       The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri, sitting by designation.
court1 sentenced Brooks to 60 months in prison, the mandatory minimum sentence.
See § 841(b)(1)(B)(viii). Brooks appeals the sentence, arguing the court erred in
finding him ineligible for “safety-valve” relief under 18 U.S.C. § 3553(f), which
permits a court to impose a sentence below the mandatory minimum. This issue turns
on whether the court erred in assessing criminal history points for two prior state
convictions, a fact-intensive issue we review for clear error. United States v.
Boroughf, 649 F.3d 887, 890 (8th Cir. 2011). Finding no clear error, we affirm.

                                         I.

       Brooks, then a nineteen-year-old methamphetamine addict, burglarized a
Whitewater, Missouri, home in June 2010. Two months later, he broke into a nearby
high school, stole $500 worth of CDs and DVDs, and started a fire. After Brooks was
arrested on January 25, 2011, a warrant search of his home uncovered numerous
objects associated with the manufacture of methamphetamine. He admitted assisting
others in manufacturing methamphetamine, including purchasing pseudoephedrine,
a precursor chemical, for use in the manufacturing.

       State prosecutors charged Brooks, separately, with burglary of the residence
and burglary and arson of the school. He pleaded guilty and was sentenced in March
2011 to concurrent sentences totaling ten years in prison, with execution suspended
after he served 120 days. More than one year later, after Brooks served his state
sentence, moved to North Carolina, and “turned his life around,” he and seven others
were charged in federal court with conspiring to manufacture methamphetamine
“[b]eginning at a time unknown . . . but including on or about January 5, 2011, up to
and including November 3, 2011.” It is undisputed that Brooks withdrew from the
conspiracy following his arrest in late January. He pleaded guilty to being a minimal


      1
       The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.

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participant in an extensive conspiracy to manufacture more than 50 grams of
methamphetamine, which subjected him to a mandatory minimum five-year sentence.

       Based on the 2011 state court convictions, the Presentence Investigation Report
recommended assessing Brooks 4 criminal history points. See U.S.S.G. § 4A1.1(b).
This would deny him relief under the statutory safety valve, because a defendant is
eligible only if he “does not have more than 1 criminal history point, as determined
under the sentencing guidelines.” 18 U.S.C. § 3553(f)(1); see U.S.S.G. § 5C1.2(a)(1).
Brooks objected to those points, arguing he should be eligible for safety valve relief
because, “while the burglaries did happen before the date of the indictment, it’s all
one series of conduct [because it] all had to do with methamphetamine use and
abuse.” At sentencing, the district court overruled this objection, explaining:

      [U]nder the law there’s just no way that he qualifies for the safety valve
      provision, because the prior offenses all took place or were completely
      separate offenses from the methamphetamine charge that he’s faced with
      now, and they all took place at completely different times and before
      actually the criminal conduct that is the subject of this particular
      indictment and guilty plea.

                                 *    *    *    *   *

      [The prior convictions were] related in the global sense [in] that . . . the
      motive behind . . . it all was methamphetamine addiction . . . . But under
      the law they’re not related. And you don’t point to any authority that
      would suggest otherwise.

The district court then determined an advisory guidelines range of 70 to 87 months
in prison, granting Brooks downward adjustments for acceptance of responsibility
and his minimal role in the conspiracy. The court granted a downward variance urged
by counsel for Brooks and the government and sentenced Brooks to the mandatory
minimum of 60 months in prison. The court commented:


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      If I could have gotten around [the mandatory minimum sentence], I
      would have done that too, but there’s no basis in the law to do that. So
      I’m just left at what I consider a sentence that’s not altogether fair in
      view of the way that you’ve turned your life around.

Brooks appeals, contending he should be eligible for safety valve relief.

                                          II.

       In the safety valve statute and parallel advisory guidelines provision, “Congress
provided relief for less culpable drug offenders from its harsh mandatory minimum
sentences.” United States v. Tournier, 171 F.3d 645, 646 (8th Cir. 1999). To be
eligible for this statutory relief, Brooks “bore the burden at the sentencing hearing of
establishing each of the five requirements for safety valve relief by a preponderance
of the evidence.” United States v. Razo-Guerra, 534 F.3d 970, 974 (8th Cir. 2008),
cert. denied, 555 U.S. 1193 (2009). The first requirement is that he “does not have
more than 1 criminal history point, as determined under the sentencing guidelines.”
18 U.S.C. § 3553(f)(1). This means “more than one criminal history point as
determined under § 4A1.1.” U.S.S.G. § 5C1.2, comment. (n.1).

        “When calculating criminal history points, a sentencing court is to consider
‘any sentence previously imposed . . . for conduct not part of the instant offense,’
defined as conduct other than ‘relevant conduct’ under U.S.S.G. § 1B1.3.” United
States v. Pinkin, 675 F.3d 1088, 1090 (8th Cir. 2012), quoting U.S.S.G. § 4A1.2(a)(1)
& comment. (n.1). Here, Brooks’s state burglary sentences were “previously
imposed” -- that is, “imposed prior to sentencing on the instant offense,” conspiracy
to manufacture methamphetamine. U.S.S.G. § 4A1.2, comment. (n.1). Because the
prior offenses were non-groupable burglary offenses, they are “relevant conduct” only
if their underlying conduct included “acts and omissions . . . that occurred during the
commission of the offense of conviction, in preparation for that offense, or in the


                                          -4-
course of attempting to avoid detection or responsibility for that offense.” U.S.S.G.
§ 1B1.3(a)(1); cf. United States v. Ewing, 632 F.3d 412, 416-17 (8th Cir. 2011), cert.
denied, 132 S. Ct. 2698 (2012); see generally United States v. Horton, 693 F.3d 463,
477-79 & n.16 (4th Cir. 2012).

       Brooks failed to meet his burden of establishing at sentencing that the
residential and school burglaries he committed in the summer of 2010 occurred
“during the commission of [or] in preparation for” his later drug conspiracy offense.
Thus, the district court did not clearly err in finding that these prior offenses were not
“relevant conduct.” Rather, they were “severable and distinct” from the offense of
conviction. United States v. Ault, 598 F.3d 1039, 1041 (8th Cir. 2010); see
Boroughf, 649 F.3d at 890-91; United States v. Davidson, 195 F.3d 402, 409 (8th Cir.
1999), cert. denied, 529 U.S. 1093 (2000). The state offenses were property crimes
committed by Brooks acting alone, and there is no evidence they furthered the goals
of the drug conspiracy, involved common victims, or were relevant to proving the
drug conspiracy offense.

       Brooks further argues, invoking the rule of lenity, that we should grant him
safety valve relief because he had no criminal history points when he committed this
federal offense. However, the statute expressly and unambiguously incorporates
criminal history points “as determined under the sentencing guidelines,” 18 U.S.C.
§ 3553(f)(1) (emphasis added), and the guidelines unambiguously provide that a
“previously imposed” sentence is one “imposed prior to sentencing on the instant
offense,” U.S.S.G. § 4A1.2, comment. (n.1) (emphasis added). The rule of lenity
does not apply unless there is “grievous ambiguity or uncertainty in the language” of
the applicable statute. United States v. Speakman, 330 F.3d 1080, 1083 (8th
Cir. 2003) (quotations omitted). The district court properly denied safety valve relief.

       Finally, Brooks contends that the mandatory minimum sentence violated his
right to due process because “it constrained the trial judge from imposing a sentence

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that was fair and just and sufficient but not greater than necessary.” As counsel
acknowledged at oral argument, we have directly rejected this contention in prior
cases. See United States v. Turner, 583 F.3d 1062, 1068 (8th Cir. 2009), cert. denied,
559 U.S. 1024 (2010); United States v. Prior, 107 F.3d 654, 658 (8th Cir.), cert.
denied, 522 U.S. 824 (1997). Our panel must follow those controlling decisions, but
we of course do not fault counsel for preserving the issue.

      The judgment of the district court is affirmed.
                     ______________________________




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