                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 18-3668
                          ___________________________

                              United States of America

                                         Plaintiff Appellee

                                           v.

               Brandon A. Morris, also known as Brandon C. Morris

                                       Defendant Appellant
                                    ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                           Submitted: November 11, 2019
                               Filed: April 8, 2020
                                  ____________

Before SHEPHERD, GRASZ, and KOBES, Circuit Judges.
                           ____________

KOBES, Circuit Judge.

       Brandon Morris pleaded guilty to possessing cocaine with intent to distribute
in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C) and possessing a firearm in
furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). The district
court1 applied a career offender enhancement and sentenced Morris to 262 months in
prison. For the first time on appeal, Morris argues that the rule of lenity should have
prevented the district court from considering him a career offender. We affirm.

       To apply the career offender enhancement, the district court needed to identify
“two prior felony convictions of either a crime of violence or a controlled substance
offense.” U.S.S.G. § 4B1.1(a). Plus, under the definitions in § 4B1.2(c), the sentence
for each “prior felony conviction” must have “counted separately under the provisions
§ 4A1.1(a), (b), or (c)” toward Morris’ criminal history score. Morris’ presentence
investigation report listed 14 prior offenses. The district court identified only two
that were crimes of violence or controlled substance offenses: a 2011 conviction for
second-degree domestic assault and a 2010 sale of an imitation controlled substance
conviction. The district court also counted the sentences for these two convictions
separately for criminal history purposes (as required under § 4B1.2(c)) by assigning
the domestic assault offense three points under § 4A1.1(a) and the controlled
substance offense one point under § 4A1.1(c).

       Morris claims that the district court erred by considering him a career offender.
His argument goes like this. First, he notes that § 4A1.1(c) permits only four prior
sentences to be counted toward a defendant’s criminal history score and does not
specify how to choose between prior sentences that could receive a point. Second,
because he had nine prior convictions that could be counted under § 4A1.1(c), Morris
suggests that the Guidelines did not require the district court to pick a group of four
that included the 2010 controlled substance offense. Finally, he claims that the rule
of lenity required the district court to not count the controlled substance offense
under § 4A1.1(c).


      1
         The Honorable David Gregory Kays, then Chief Judge of the United States
District Court for the Western District of Missouri, now United States District Judge
for the Western District of Missouri.

                                          -2-
      Because Morris failed to raise this claim below, we review for plain error.
United States v. Wohlman, 651 F.3d 878, 883–84 (8th Cir. 2011). Morris must show
“(1) an error; (2) that is plain; and (3) that affects substantial rights.” Id. at 884.
Even if Morris satisfies these requirements, “we may exercise our discretion to
correct a forfeited error only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id.

       We conclude that the district court did not commit error, plain or otherwise.
The lynchpin of Morris’s argument is that § 4A1.1(c) is ambiguous because it does
not specify how district courts should select among prior sentences that are eligible
to be counted under that subsection. But we fail to see any ambiguity here, let alone
one that would trigger the rule of lenity on plain error review. See Ocasio v. United
States, 578 U.S. ––––, ––––, n. 8, 136 S. Ct. 1423, 1434, n. 8 (2016) (“The rule of
lenity applies only when a criminal statute contains a grievous ambiguity or
uncertainty, and only if, after seizing everything from which aid can be derived, the
Court can make no more than a guess as to what Congress intended.” (cleaned up));
United States v. Ellis, 815 F.3d 419, 423 (8th Cir. 2016) (“The plain-error rule is
permissive, not mandatory, and a court of appeals has authority to order correction
of an error, but is not required to do so.”). Section 4A1.1(c) permits a court to count
“up to a total of 4” prior sentences as long as they were “not counted in [§ 4A1.1](a)
or (b).” So, when a defendant has more than four prior sentences that could be
counted, the plain language of the Guideline gives the district court discretion to
choose among them. Because there is no ambiguity here, “the rule of lenity is not
applicable.” United States v. Johnson, 529 U.S. 53, 59 (2000).2


      2
        Morris argues that United States v. King, 595 F.3d 844 (8th Cir. 2010) and
United States v. Parker, 762 F.3d 801 (8th Cir. 2014) lead to a different result. But
those cases interpreted a different Guideline that has since been amended. See United
States v. Ellis, 815 F.3d 419, 423 (8th Cir. 2016). King has also been criticized by
other panels of this court and described as an “outlier.” Ellis, 815 F.3d at 423;
Donnell v. United States, 765 F.3d 817, 819–20 (8th Cir.2014). Because § 4A1.1(c)

                                          -3-
       We rejected a similar argument in United States v. Gilliam, 934 F.3d 854 (8th
Cir. 2019). There, the defendant argued that the district court could have counted his
prior sentences in a way that would have avoided adding another point to his criminal
history score under § 4A1.1(e). Id. at 862. But, because the Guidelines also
permitted the court to attribute the additional point, we held that there “there was [no]
error, much less one that [was] plain.” Id. Likewise, although the district court might
have declined to count Morris’s imitation controlled substance offense under
§ 4A1.1(c), it was not required to do so under the plain language of the Guideline.

      The district court properly applied the career offender enhancement. We
affirm.
                      ______________________________




is not ambiguous, King and Parker’s rationale does not control here. Even if it did,
we would not apply it on plain error review. Ellis, 815 F.3d at 423.

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