                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1120
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                     Laron Gray, also known as Marvin Verser

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                       for the District of Nebraska - Omaha
                                  ____________

                           Submitted: November 16, 2015
                             Filed: November 25, 2015
                                   [Unpublished]
                                   ____________

Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.
                              ____________

PER CURIAM.

      Laron Gray pleaded guilty to a single count of distributing 28 grams or more
of cocaine base, in violation of 21 U.S.C. § 841. Following application of the career
offender Guidelines enhancement, the district court1 sentenced Gray to 188 months
in prison. To qualify for the enhancement, Gray allegedly had three predicate
crimes–two for aggravated assault, and one for second-degree battery. The
government argues that the battery conviction qualifies under both the "force" clause
of the career offender Guidelines, see United States Sentencing Guidelines Manual §
4B1.2(a)(1), and the "residual" clause in § 4B1.2(a)(2). The government concedes
that the assault convictions, however, do not have an element of "force" and therefore
qualify only under the "residual" clause of the career offender Guidelines. In June,
the Supreme Court held that the identically worded "residual clause" of the Armed
Career Criminal Act was unconstitutionally vague in Johnson v. United States, 135
S. Ct. 2551, 2557-60 (2015). On October 9, 2015, we construed a post-Johnson
challenge to the residual clause of the career offender Guidelines and held that
Johnson mandated a remand to the district court for resentencing when the residual
clause of the Guidelines was the only basis for construing the predicate offenses as
crimes of violence. United States v. Taylor, 803 F.3d 931, 932-33 (8th Cir. 2015) (per
curiam). We remanded for a determination of whether the residual clause of the
career offender portion of the Guidelines was unconstitutional, and if so, resentencing.
Id. at 933.

       Nonetheless, the government argues that any error in applying the career
offender Guidelines is harmless, as Gray's sentencing Guidelines calculation would
have been the same even without application of the career offender provisions.
Indeed, the district court's sentencing calculations and the presentence investigation
report both indicate that even without the career offender provisions, Gray's criminal
history category would be VI,2 and his offense level 34, resulting in the same


      1
        The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.
      2
       The effect of the career offender provisions is to bump an offender's criminal
history category to VI. See U.S.S.G. § 4B1.1(b).

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sentencing range. However, Gray has also challenged the age of these same three
previous convictions (battery, and two aggravated assaults), arguing that they are too
remote in time to be counted under the Guidelines. See U.S.S.G. § 4A1.2(e)
(directing that a prior offense which occurred more than fifteen years before the
defendant's "commencement of the instant offense" is not counted unless the
defendant's incarceration for the prior offense extended into this fifteen-year period).
Gray has nine criminal history points resulting from the three relevant offenses. Gray
was arrested for these offenses in April 1994, May 1995 and July 1995, but his period
of incarceration from these offenses lasted until he was released from prison on
October 15, 1998. Thus, the fifteen-year period ended on October 15, 2013. Gray
argues that because he and the government stipulated that the offense he pleaded
guilty to occurred on December 12, 2013, these three prior offenses are too remote (by
the slim margin of two months) to be considered as part of his criminal history. The
government presented evidence at the sentence hearing and now argues that Gray's
relevant conduct (drug dealing) for the current offense extended back to a time prior
to October 15, 2013, and so these three convictions should count. See U.S.S.G. §
4A1.2(e) cmt. n.8 (noting that "commencement of the instant offense" as used in §
4A1.2(e) "includes any relevant conduct"). The district court agreed and although the
court noted the issue was a "close call," it ultimately found that the government had
proved by a preponderance of the evidence that Gray's relevant conduct extended to
a time period prior to October 15, 2013.

       We review the district court's relevant-sentencing-conduct factual findings for
clear error and its construction and application of the Guidelines de novo. United
States v. Howard, 759 F.3d 886, 889 (8th Cir. 2014). Further, the district court has
broad discretion at sentencing concerning the kind and source of the information it
receives. United States v. Garcia, 774 F.3d 472, 475 (8th Cir. 2014). Relevant
conduct is defined in our case law and in the Guidelines as conduct which is taken in
preparation for, prior to, and in order to facilitate the charged offense. Howard, 759
F.3d at 889; see U.S.S.G. § 1B1.3(a)(1)(B) (defining relevant conduct). At the

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sentencing hearing, the government presented evidence, most of which was hearsay
(the government agent testifying about the contents of proffer interviews and the
confidential informant's statements), of Gray's drug dealing in the time frame
including and prior to October 2013. The district court found that this evidence
satisfied the government's relatively low burden of proving that relevant drug-dealing
conduct occurred prior to October 15, 2013. See United States v. Thomas, 760 F.3d
879, 889 (8th Cir. 2014) (noting that relevant conduct is established by a
preponderance of the evidence presented at sentencing), cert. denied, 135 S. Ct. 1013
(2015); Garcia, 774 F.3d at 475 (observing that a sentencing proceeding does not
carry the same evidentiary protections as a trial and that the court may consider
uncorroborated hearsay evidence if it has sufficient indicia of reliability).

       Having reviewed the record, we find the district court did not abuse its
discretion in considering the evidence it did to make its findings, nor did it clearly err
in making those findings. The three prior offenses were properly included in Gray's
criminal history. Because Gray's sentencing Guidelines calculations were the same
even without operation of the arguably unconstitutional residual clause of the career
offender Guidelines, any error in applying this Guideline was harmless. United States
v. Stong, 773 F.3d 920, 926 (8th Cir. 2014), cert. denied, 135 S. Ct. 1872 (2015).
Accordingly, we affirm the sentence imposed by the district court.
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