                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-3328
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                             Mario Andrew Williams

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                  for the Southern District of Iowa - Davenport
                                 ____________

                             Submitted: May 20, 2016
                              Filed: August 22, 2016
                                  [Unpublished]
                                  ____________

Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.
                         ____________

PER CURIAM.

     Mario Andrew Williams was convicted of conspiracy to distribute at least 280
grams of a mixture or substance containing cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), and 846. He appeals from the 240-month sentence imposed
by the district court.1 We affirm.

       Law enforcement officers began investigating Williams in June 2014 after a
confidential source provided information that Williams had been selling crack cocaine
and marijuana out of his home in Davenport, Iowa. Officers conducted three
controlled buys at Williams’s home in June and July of 2014, during which a
confidential source purchased small quantities of substances that were later confirmed
to be crack cocaine and marijuana. The officers arrested Williams on July 15, 2014,
outside a motel where Williams was staying with his girlfriend and their three
children. Williams initially fled when officers approached him, but was quickly
apprehended and brought under control by use of a taser, following which he
participated in an interview with officers. Williams informed the officers that he had
been purchasing one-ounce quantities of crack cocaine from his cousin in Chicago,
Illinois, since approximately July 2009, totaling approximately twenty or twenty-five
ounces between 2009 and 2014. He explained that he had been convicted in 2008 of
possession with intent to deliver ten grams or less of crack cocaine, that he had been
released from prison on parole in July 2009, and that he had sold small quantities of
crack cocaine “off and on” since that time.

       The presentence investigation report (PSR) applied the career-offender
enhancement based on Williams’s 2007 conviction for possession with intent to
deliver marijuana and the above-mentioned 2008 conviction. With the enhancement,
the PSR calculated a total offense level of 34, a criminal history category of VI, and
a resulting advisory sentencing range of 262 to 327 months’ imprisonment. Williams
did not object to the PSR’s application of the career-offender enhancement.




      1
        The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.

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       Williams requested a downward variance to a sentence near the statutory
minimum of 10 years’ imprisonment, arguing that he had accepted responsibility for
his poor choices, expressed sincere remorse, cooperated with police, and demonstrated
a commitment to obtaining an associate’s degree. Williams introduced testimony
from his mother, a letter from a financial advisor at the community college he
attended, and a letter from a family friend in support of his request, all of which
pointed to Williams’s strong relationship with his family and his efforts at self
improvement. Williams noted that he was actively involved in his children’s lives,
that his offense was not violent and involved small quantities of crack cocaine, that
he had never used a weapon, that he had committed his earlier crimes when he was a
young man, and that he had never been incarcerated for longer than eight months.

        The district court discussed the § 3553(a) factors, noting that “some of these
factors work in your favor and some of them work against you.” After acknowledging
the above-described mitigating factors, the court stated that Williams was “involved
in distributing something that destroys people’s lives,” that Williams had been “pretty
consistently involved in criminal activity,” and that he had “increased the seriousness
of [his] involvement” in that activity over time. The court recognized that Williams
faced a prison term substantially longer than any he had faced before, observing that
the lenient sentences Williams had received in the past had apparently failed to deter
him from illegal conduct. After weighing the relevant factors, the court concluded
that a substantial sentence was necessary and that “a modest variance [was]
appropriate, but it can only be a modest variance in response to all of the other factors
that the Court must consider,” and then imposed the earlier-noted 240-month sentence.

      Williams argues that his 2008 conviction was not a prior conviction for
purposes of the career-offender enhancement because it was “part of the same course
of conduct or common scheme or plan as the offense of conviction.” U.S.S.G.
§ 1B1.3(a)(2); United States v. Hernandez, 712 F.3d 407, 409 (8th Cir. 2013).
Because Williams failed to raise this objection in the district court, we review for plain

                                           -3-
error.2 Fed. R. Crim. P. 52(b); see also United States v. Pirani, 406 F.3d 543, 550 (8th
Cir. 2005) (en banc) (standard of review).

       A prior conviction does not count toward the career-offender enhancement if
that conviction was for “relevant conduct,” meaning conduct that is attributable to the
instant offense. See U.S.S.G. §§ 4A1.2(a)(1) & cmt. n.1, 4B1.2 cmt. n.3; see also id.
§ 1B1.3 & cmt. n.5(B)-(C) (defining “relevant conduct”). “[I]n determining
. . . whether a prior conviction should not be counted because it was imposed for
relevant conduct, ‘[c]onduct underlying a prior conviction is not relevant to the instant
offense if the former conviction was a “severable, distinct offense” from the latter.’”
Hernandez, 712 F.3d at 409 (second alteration in original) (quoting United States v.
Weiland, 284 F.3d 878, 881 (8th Cir. 2002)). “[O]ffense conduct associated with a
sentence that was imposed prior to the acts or omissions constituting the instant
federal offense . . . is not considered as part of the same course of conduct or common
scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3 cmt. n.5(C). Here,
Williams’s prior conviction was separated from the instant offense by a prison term,
Williams admitted that he entered into the instant conspiracy after being released from
prison, and the record contains no evidence that the two offenses were connected in
any way other than the fact that both involved crack cocaine. The district court thus
committed no error, plain or otherwise, in counting Williams’s 2008 conviction as a
prior conviction for purposes of the career-offender enhancement.

      Williams argues in the alternative that his sentence is substantively
unreasonable because the district court failed to place sufficient weight on Williams’s


      2
       The government argues that Williams waived his career-offender argument by
admitting in the plea agreement that the conspiracy began “in or around July 2009”
and by acknowledging that the PSR’s application of a 2-level enhancement for
maintaining a drug premises did not affect the total offense level in light of the
application of the career-offender enhancement. We assume without deciding that
Williams did not waive this issue and that plain-error review is appropriate.

                                          -4-
acceptance of responsibility, his personal circumstances, the non-violent nature of his
prior offenses, and the fact that the longest period he had spent in prison was less than
one year. We review the substantive reasonableness of a sentence for abuse of
discretion. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).
“A district court abuses its discretion when it (1) ‘fails to consider a relevant factor
that should have received significant weight’; (2) ‘gives significant weight to an
improper or irrelevant factor’; or (3) ‘considers only the appropriate factors but in
weighing those factors commits a clear error of judgment.’” Id. (citation omitted).
The district court considered only relevant factors under § 3553(a) and gave
Williams’s mitigating factors the weight it thought they deserved, and thus we
conclude that it did not commit a clear error of judgment in concluding that a 240-
month sentence was “sufficient, but not greater than necessary to” comply with the
purposes of sentencing.

      The sentence is affirmed.
                      ______________________________




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