                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                 No. 04-3038/3039
                                  ___________

United States of America,              *
                                       *
           Plaintiff - Appellee,       *
                                       * Appeals from the United States
      v.                               * District Court for the
                                       * District of South Dakota.
Louis Winters, Jr., also known as      *
Boy Winters,                           *
                                       *
           Defendant - Appellant.      *
                                  ___________

                             Submitted: May 10, 2005
                                Filed: June 22, 2005
                                 ___________

Before MURPHY, FAGG, and BENTON, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       Louis "Boy" Winters, Jr., was charged in separate indictments with conspiracy
to distribute a controlled substance and being a felon in possession of a firearm. He
pled guilty to both charges under plea agreements in which he waived most of his
rights to appeal. Winters was sentenced to 262 months on the conspiracy count and
51 months on the firearm count, to be served consecutively. Winters appeals, arguing
that the district court1 erred in its application of the sentencing guidelines and abused
its discretion by imposing consecutive sentences. We affirm.

       Winters left federal prison on supervised release in March 1998 and distributed
drugs on the Pine Ridge Indian Reservation starting in 1998 or 1999. After his urine
sample tested positive for cocaine in December 2000, he consented to a search of his
residence. According to the Presentence Investigation Report (PSR), the search
uncovered a semiautomatic pistol, marijuana, cocaine residue, two scales, a piece of
rolled white paper, approximately $7,817 in cash, packaging papers, and six boxes
of ammunition. Winters was detained pending revocation of supervised release.
From jail he instructed his wife to continue distributing the cocaine that remained
from his most recent purchase and to give Jerry Cottier large amounts of cash to
purchase more cocaine for distribution. He returned to prison after his supervised
release was revoked.

       Upon his release in September 2002, he collected money from individuals to
whom he had made loans or sold drugs and resumed distributing cocaine. His
business grew, and Winters obtained a new source of cocaine in California and sent
couriers there to purchase drugs. He continued to distribute cocaine until he was
arrested in July 2003. Winters admitted responsibility for importing and selling 15
to 20 kilograms of cocaine. He also admitted to being a felon in possession of a
firearm and specifically, that on January 1, 2003 he gave a Colt .45 pistol to another
individual at his home in Pine Ridge and that he had previously been convicted of
second degree murder.

      After his arrest for the charges in this case, Winters wrote to his wife Michaela
from jail. In the letter he made statements that could be construed as veiled threats.


      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.

                                          -2-
He listed specific people and wrote "pay back time." Michaela showed the letter to
one of the people Winters had mentioned in the letter.

       Winters was charged in a superseding indictment in case 04-3038 with being
a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2), and being an accessory after the fact, in violation of 18 U.S.C. § 3. He was
charged in another superseding indictment in case 04-3039 with conspiring to
distribute and to possess with the intent to distribute 5 kilograms or more of a mixture
or substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), and 846; possession with intent to distribute cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and possession with intent to
distribute cocaine within 1,000 feet of a public secondary school, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860(a). Winters entered into plea agreements
in both cases and moved for "joint entry" of pleas and a joint sentencing hearing. The
motion was supported by the government and granted by the district court.

        In the firearm case, Winters agreed to plead guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The
government agreed that it would recommend a two level reduction in offense level
for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and that Winters was
entitled to an additional one level reduction under § 3E1.1(b)(2). The parties agreed
that the sentence should run concurrently with that in the conspiracy case and that
there were no grounds for departure from the guideline range which would be
determined by the court. Under the agreement any recommendations by the
government would not bind the court and Winters could not withdraw his guilty plea
if the court rejected them.

      Winters waived the right to appeal "any and all motions, defenses, probable
cause determinations, and objections which he has asserted or could assert to this
prosecution, and to the Court's entry of judgment against him and imposition of

                                          -3-
sentence." Expressly excluded from the waiver provision was his right to appeal if
the court were to depart upward from the guideline range "established by the Court
for the offense." In his statement of factual basis for the guilty plea, Winters admitted
that on January 1, 2003 he had possessed a Colt .45 automatic pistol which he then
gave to another individual at his home in Pine Ridge. He admitted that prior to
possessing the firearm, he had been convicted of the felony offense of second degree
murder.

       In the other plea agreement, Winters agreed to plead guilty to conspiring to
distribute and to possess with intent to distribute 5 kilograms or more of a mixture or
substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), and 846. Winters admitted that from 1999 onward, he
combined with others to bring cocaine from Denver, Colorado to sell in Pine Ridge
and that over the course of the conspiracy he imported and sold between 15 and 20
kilograms of cocaine. Winters and the government stipulated that his base offense
level would be 34, but acknowledged that their stipulation was not binding upon the
court. The government agreed to recommend a nonbinding two level reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1(a) and an additional one level
reduction under § 3E1.1(b)(1). The parties agreed that the conspiracy sentence
should run concurrently with the firearm sentence. Winters waived the right to appeal
"any and all motions, defenses, probable cause determinations, and objections which
he has asserted or could assert to this prosecution, and to the Court's entry of
judgment against him and imposition of sentence," except he maintained the right to
appeal a base offense level above 34 or any upward departures from the guideline
range established by the court.

      Winters pled guilty to the two counts, and a combined Presentence
Investigation Report (PSR) was prepared and later revised following the Supreme
Court's decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). In outlining
sentencing options for the court, the revised PSR presented nonbinding offense level

                                          -4-
computations and criminal history calculations for the court's consideration and
proposed no enhancements.

       At the outset of the sentencing hearing the district court stated its conclusion
that the federal sentencing guidelines were unconstitutional under Blakely v.
Washington but that it would draw on them to assist it in arriving at a just sentence
for the crimes. The court then calculated the guideline ranges using a criminal history
category of III, as suggested in the revised PSR. The court stated that the base
offense level for the firearm conviction was 20, resulting in a guideline range of 41
to 51 months, and that the base offense level for the conspiracy conviction was 34.
It then added "one level under the multiple count adjustment" for an adjusted offense
level of 35 and a sentencing range of 210 to 262 months. The government pointed
out that the PSR had calculated the multiple count adjustment to be 34, rather than 35.
The court responded that it would take that into consideration.

       The PSR prepared prior to Blakely had recommended a four level enhancement
for the felon in possession count under U.S.S.G. § 2K2.1(b)(5), for possessing or
transferring a firearm with knowledge or intent that it would be used or possessed in
connection with another offense. The relevant factual statement outlined in the PSR
alleged that Winters gave a loaded Colt .45 to Stacy Winters on January 1, 2003 and
that Stacy used the gun to kill Lucien Janis later that evening. Louis Winters objected
to these facts and other related information. The original PSR had also recommended
a two level enhancement on the conspiracy count for possession of a dangerous
weapon under U.S.S.G. § 2B1.1(b)(1) and a four level role enhancement for organizer
or leader under U.S.S.G. § 3B1.1(a). The PSR stated that over the course of the
conspiracy approximately twenty one individuals sold, stored, transported, and
repackaged cocaine for Winters.

      The court stated that it would "treat the guidelines as non-binding but advisory"
and that the statutory maximum sentence established by Congress would become the

                                         -5-
high range for sentencing purposes. It went on to say that it need not resolve Winters'
objections to the PSR because it was not imposing enhancements based on contested
facts, but an indeterminate sentence. The court declined to apply a downward
adjustment for acceptance of responsibility because the proceedings had been
prolonged as evidenced by eighty docket entries in the file, Winters had had
disciplinary problems in pretrial detention, and he had threatened to retaliate against
witnesses. When defense counsel asked the court to impose a sentence within the
guideline range calculated in the revised PSR, the court stated its view that the federal
sentencing guidelines were only advisory, but that Winters "would be subject to a
resentencing hearing" if they were later held to be mandatory. The court then
sentenced Winters to 262 months on the conspiracy conviction and 51 months on the
felon in possession conviction, with the sentences to run consecutively for a total
sentence of 313 months.

        Winters appeals his sentence, arguing that the procedural provisions of the
sentencing guidelines remain binding after United States v. Booker, 125 S. Ct. 738
(2005), that the district court erred in its application of the multiple count adjustment,
that it abused its discretion by failing to decrease the offense level for acceptance of
responsibility, that it erred in computing his criminal history category, and that it
erred and abused its discretion by imposing consecutive sentences.

      We continue to review the district court's factual findings for clear error and
the application of the sentencing guidelines de novo following the Supreme Court's
decision in Booker. United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir. 2005).
We review Winters' sentences for unreasonableness in light of the factors set out in
18 U.S.C. § 3553(a). Booker, 125 S. Ct. at 765-66.

      Winters argues that the district court erred in interpreting and calculating the
multiple count adjustment under Chapter 3, Part D of the United States Sentencing
Guidelines Manual. He argues that Booker made the sentencing guidelines advisory

                                           -6-
only as to factual determinations made by the sentencing court, but that "procedural
parts" of the guidelines remain binding, including those in Chapter 3, Part D relating
to multiple counts and in Chapter 5, Part G relating to the imposition of concurrent
or consecutive sentences. He contends that under § 3D1.4 the combined total offense
level should have been 34 as calculated in the revised PSR, instead of 35 as
determined by the court. Assuming a criminal history category of III, the resulting
combined sentencing range should have been 188 to 235 months he contends, and the
district court erred by imposing a total sentence of 313 months.

      The government agrees that under the guidelines the correct combined total
offense level would be 34. It points out, however, that both the government and
Winters brought this issue to the court's attention at sentencing and that the court
stated it was using the federal sentencing guidelines as advisory only. The
government argues that under Booker the sentencing guidelines are advisory rather
than mandatory and the district court could sentence Winters to any reasonable term
of imprisonment below the statutory maximum sentences of 10 years on the firearm
count and life on the conspiracy count.

       We find no support for Winters' argument that portions of the sentencing
guidelines remain mandatory after Booker. The Supreme Court held in Booker that
the Sixth Amendment applies to the federal sentencing guidelines so that "[a]ny fact
(other than a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury verdict must
be admitted by the defendant or proved to a jury beyond a reasonable doubt." 125 S.
Ct. at 755-56 (citing Apprendi v. New Jersey, 530 U.S. 466, 476 (2000)). In its
remedial opinion the Court excised the statutory sections making the guidelines
mandatory, 18 U.S.C. § 3553(b)(1), and controlling the standard of appellate review,
18 U.S.C. § 3742(e). Booker, 125 S. Ct. at 765. The effect was to make the
guidelines as a whole advisory, rather than mandatory, id. at 756-57, and the Court
instructed reviewing courts to review a sentence for unreasonableness. Id. at 765-66.

                                         -7-
A sentencing court must calculate the guideline sentence and consider it, as well as
the other sentencing factors in 18 U.S.C. § 3553(a) in arriving at its sentence. Booker,
125 S. Ct. at 764-65.

        Under Booker the district court was not required to impose a sentence within
the guideline range corresponding to a combined total offense level of 34, and there
was no Booker error because the court applied the guidelines as advisory. At the
beginning of the sentencing hearing, the court stated that the guidelines were
unconstitutional, but that they "do provide some assistance to the trial courts in
attempting to arrive at a just and fair sentence based upon all of the facts and
circumstances." When defense counsel pointed out that the court had added a point
to the combined offense level and recommended that it impose a sentence within the
range set out in the revised PSR, the court stated that that approach would be correct
if the guidelines were binding but that they were not. The court further noted that if
the guidelines were later held to be mandatory, Winters would be entitled to a
resentencing hearing.

       Winters contends that the district court abused its discretion by denying a
reduction for acceptance of responsibility which resulted in a higher total offense
level than foreseen by the parties. Winters contends that the court ignored the facts
that he pled guilty within a month of his arraignment on the last of four superseding
indictments, that few of the docket entries consisted of motions made by him, and that
the PSR did not recommend an enhancement for obstruction of justice. He contends
that the court did not discuss how his disciplinary problems related to his acceptance
of responsibility and that his due process rights were violated by the court's findings
regarding these disputed matters without an evidentiary hearing. He further argues
that the court's findings were clearly erroneous.

      The government responds that Winters waived his right to appeal the court's
refusal to grant him a reduction for acceptance of responsibility. While Winters

                                          -8-
preserved his right to appeal any upward departure, the government says the denial
of a downward adjustment is not an upward departure, citing United States v. Street,
257 F.3d 869, 870 (8th Cir. 2001). The government also contends that even though
it recommended that Winters be credited for acceptance of responsibility, the district
court did not clearly err by denying the reduction.

       In the two plea agreements, Winters waived the right to appeal his sentence but
reserved his right to appeal "should the Court depart upward from the guideline range
established by the Court." The denial of a reduction for acceptance of responsibility
was not an upward departure but was part of the court's calculations leading to the
guideline range. See Street, 257 F.3d at 870 (obstruction of justice enhancement not
an upward departure from guideline range established by the court). Winters waived
his right to appeal a denial of the reduction for acceptance of responsibility, see
United States v. Andis, 333 F.3d 886 (8th Cir. 2003) (en banc), and he does not claim
that his appeal waiver was unknowing or involuntary or that it resulted in a
miscarriage of justice. See Street, 257 F.3d at 870.

       We will reverse a district court's refusal to grant a reduction for acceptance of
responsibility only for clear error. United States v. Rodamaker, 56 F.3d 898, 901 (8th
Cir. 1995). At sentencing the district court considered Winters' argument that he had
pled guilty within a month of his arraignment on the fourth superseding indictment.
It was familiar with the docket because it had signed many of the orders in the case,
and Winters does not dispute some disciplinary problems in pretrial detention or the
contents of the letter he wrote his wife from jail. The district court was entitled to
draw inferences from these facts. See id. at 902 (district court could draw appropriate
inferences from undisputed facts and was not required to hold an evidentiary hearing
before denying adjustment for acceptance of responsibility). The district court was
able to observe Winters' demeanor at the plea and sentencing hearings and was in the
best position to determine whether Winters had accepted responsibility. See United
States v. Colbert, 172 F.3d 594, 597 (8th Cir. 1999). We conclude that in the

                                          -9-
circumstances of this case the district court did not clearly err by denying the
downward adjustment without an evidentiary hearing.

        Winters argues that the district court erred by computing his criminal history
category based on facts not admitted by him or determined by a jury beyond a
reasonable doubt. The district court adopted the revised PSR's calculation of criminal
history which gave Winters three criminal history points for his prior convictions. It
then added two points under U.S.S.G. § 4A1.1(d) for having been on supervised
release while engaging in the drug conspiracy, and one additional point under
U.S.S.G. § 4A1.1(e) for committing that offense less than two years following his
release from custody. These additions raised Winters from criminal history category
II to III which he claims violated Blakely v. Washington, 124 S. Ct. 2531 (2004), and
Apprendi v. New Jersey, 530 U.S. 466 (2000). The government responds that
Winters waived his right to challenge the district court's calculation of his criminal
history, that he failed to make appropriate objections to the facts in the revised PSR,
and that neither Blakely nor Apprendi bar a district court from making findings about
criminal history.

        Calculation of appellant's criminal history was a step in establishing the
sentencing range under the advisory guidelines, not a departure from that range. See
Street, 257 F.3d at 870. Although Winters would have been entitled to appeal an
upward departure based on a finding that his criminal history category understated the
seriousness of his criminal history record, there was no such finding or departure
here. Through the waivers in his plea agreements, Winters waived his right to appeal
the calculation of his criminal history category. See Andis, 333 F.3d 886. Winters
also failed to object to facts in the PSR about his distributing drugs while on
supervised release and less than two years following his release from custody. Even
if the court had regarded the guidelines as mandatory instead of advisory, there would
have been no Sixth Amendment violation by its criminal history findings, for facts
related to prior convictions are sentencing factors for the court not the jury.

                                         -10-
Almendarez-Torres v. United States, 523 U.S. 224 (1998); see Booker, 125 S. Ct. at
756; see also Shepard v. United States, 125 S. Ct. 1254 (2005); United States v.
Johnson, 408 F.3d 535, 540 (8th Cir. 2005); United States v. Mattix, 404 F.3d 1037,
1038 (8th Cir. 2005).

       Winters next challenges the district court's imposition of consecutive sentences.
He argues that the offenses should have been grouped under U.S.S.G. § 3D1.2 as
counts involving substantially the same harm because the firearm offense occurred
while the drug conspiracy was ongoing, citing United States v. Waugh, 207 F.3d
1098 (8th Cir. 2000), and United States v. Rugh, 968 F.2d 750, 755 (8th Cir. 1992).
He contends that the maximum total sentence the district court was authorized to
impose under the guidelines was 235 months, the top of a guideline range calculated
with a combined offense level of 34 and criminal history category III, and that §
5G1.2 requires that the sentences run concurrently. Under § 5G1.2(c) sentences
should run concurrently if "the sentence imposed on the count carrying the highest
statutory maximum is adequate" to reach the total sentence. Winters says the court
should have imposed at most a sentence of 235 months on the conspiracy count and
a concurrent sentence on the firearm count. He also contends that the government is
not entitled to argue that the consecutive sentences should be affirmed because it
agreed in the plea agreements that the sentences should run concurrently.

        The government also cites Waugh in support of its argument that the offenses
did not need to be grouped under U.S.S.G. § 3D1.2 and that consecutive sentences
were permissible. It contends that the plea agreements did not bind it on appeal but
that it carried out its contractual obligations, citing United States v. Colon, 220 F.3d
48 (2d Cir. 2000). Alternatively, it argues that any error would be harmless because
the sentences were imposed under an indeterminate sentencing scheme.

     The plea agreements stated that the court was not bound to follow any
recommendations made by the government, and the government complied with its

                                         -11-
contractual obligation to recommend concurrent sentences to the court. The only
provisions in the plea agreements discussing appeals are the provisions under which
Winters waived his right to appeal with exceptions for an upward departure from the
range established by the court or for a base offense level higher than 34 on the
conspiracy count. Although the parties agreed that the sentences for the two offenses
should run concurrently, the plea agreements did not limit the government's response
to issues on appeal. See Colon, 220 F.3d at 49, 51-53 (holding that government may
argue on appeal contrary to the position a plea agreement required it to take at
sentencing).

       Under U.S.S.G. § 3D1.2 a court can group multiple crimes for the purpose of
sentencing when they involve substantially the same harm, but "grouping is not
appropriate and the court retains the discretion to sentence either consecutively or
concurrently" if the crimes affected different victims, were separated in time, and
involved dissimilar conduct. Waugh, 207 F.3d at 1102. The primary focus in
determining whether offenses involve substantially the same harm is whether they
involve the same victim and the same act or transaction. Id.; Rugh, 968 F.2d at 755.
In this case, Winters pled guilty to two distinct crimes, being a felon in possession of
a firearm and conspiring to distribute cocaine. These crimes did not have a common
victim, were not part of the same act or transaction, and did not involve similar
conduct. Although Winters admitted to being in possession of the firearm on one day
in January 2003, the conspiracy spanned about four years so that most of the offense
conduct was separated in time. We conclude that the district court did not clearly err
by failing to group the offenses for sentencing purposes.

       Winters argues further that the court abused its discretion by imposing
consecutive sentences without considering the § 3553(a) sentencing factors since 18
U.S.C. § 3584 requires that the court consider these factors "in determining whether
the terms imposed are to be ordered to run concurrently or consecutively." Under §
3553(a)(4) the district court must consider the applicable federal sentencing guideline

                                         -12-
range, and Winters contends that his sentences must be remanded because they were
based on the court's erroneous interpretation of the guidelines. He asserts that his 313
month total sentence is excessive when compared to a proper guideline range of 188
to 235 months using a combined total offense level of 34 and criminal history
category III.

       Justice Breyer's remedial opinion in Booker explained that a district court
should impose sentence after considering the federal sentencing guidelines and other
sentencing goals set out in 18 U.S.C. § 3553(a), 125 S. Ct. at 764-65, and that its
sentence is to be reviewed for unreasonableness guided by these sentencing factors.
Id. at 765-66. In making the reasonableness determination, we ask whether the
district court abused its discretion. United States v. Pizano, 403 F.3d 991, 995 (8th
Cir. 2005).

      Although the district court considered the guidelines to be advisory, it
nevertheless calculated a guideline range as Booker requires. It considered the
revised PSR and its recommended sentencing range of 135 to 168 months, but it
declined to grant a downward adjustment for acceptance of responsibility because it
found Winters did not qualify for the reduction. It then imposed a sentence on the
conspiracy count corresponding to a total offense level of 35 rather than 34 as
calculated in the PSR. While the district court did not explicitly analyze all of the §
3553(a) factors, we have considered them in our review of its sentencing decisions
and conclude that they support the reasonableness of Winters' sentence. See Pizano,
403 F.3d at 996. The district court particularly examined the nature and
circumstances of the conspiracy offense, see 18 U.S.C. § 3553(a)(1), observing that
one basis for Winters' sentence was the impact of his importation of drugs onto the
reservation for at least four years, and finding that he had "committed much
depredation in Indian country." See 18 U.S.C. § 3553(a)(2). The sentence imposed
was not excessive compared to the guideline range calculated in the original PSR
prepared before Blakely. See 18 U.S.C. § 3553(a)(4). Under that calculation a higher

                                         -13-
range would have resulted, and Winters could have been sentenced up to life or 365
months even with a three level adjustment for acceptance of responsibility.2 The
court chose not to apply the recommended enhancements, however.

        Also significant on the issue of unreasonableness is the fact that Winters is a
repeat offender who began distributing cocaine on the Pine Ridge Indian Reservation
soon after his release from federal custody. He admitted that he was responsible for
importing between 15 and 20 kilograms of cocaine into Pine Ridge over a four year
period. When his supervised release was revoked, Winters instructed his wife to keep
purchasing and distributing cocaine in his place. He resumed the distribution
business when he was again released from custody, and his business grew. While in
jail after he was arrested for these offenses, Winters wrote a letter to his wife in which
he listed specific people and wrote "pay back time." Winters also admitted that as a
felon previously convicted of second degree murder he lent a gun to another
individual. After reviewing the sentence imposed in light of all the statutory factors,
we conclude that Winters' sentence was not unreasonable.

      For these reasons the judgment of the district court is affirmed.
                      ______________________________




      2
         The original PSR had enhanced Winters' base offense level on the conspiracy
count to arrive at a total offense level of 40, adding two levels for possession of a
dangerous weapon under U.S.S.G. § 2B1.1(b)(1) and four levels for organizer or
leader under § 3B1.1(a). His base offense level of 20 on the firearm count was
enhanced four levels under § 2K2.1(b)(5) for lending the gun to Stacy Winters. The
PSR then calculated a combined offense level of 41. With a criminal history category
III, the resulting guideline range would have been 360 months to life.
                                          -14-
