                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                Nos. 02-3907/4019
                                  ___________

United States of America,            *
                                     *
           Appellant/Cross Appellee, *
                                     * Appeals from the United States
     v.                              * District Court for the
                                     * Southern District of Iowa.
Donald Michael Hutman,               *
                                     *
           Cross Appellant/Appellee. *
                               ___________

                             Submitted: May 13, 2003

                                  Filed: August 12, 2003
                                   ___________

Before BOWMAN, HEANEY, and BYE, Circuit Judges.
                         ___________

BYE, Circuit Judge.

      The government contends the district court erred when it determined Donald
Hutman's career offender status (and resulting criminal history category VI)
overstated the seriousness of his criminal history. In a cross-appeal, Hutman
contends his 1992 burglary of a commercial structure should not count as one of the
two predicate offenses used to trigger career offender status. We reverse in part and
affirm in part.
                                          I

       Between January and May 2001, Hutman and two other individuals made
several sales of methamphetamine to a confidential informant and an undercover law
enforcement agent. When Hutman was arrested, he was in possesseion of an
additional nine grams of methamphetamine. Hutman, along with the other two
individuals, was charged in a nine-count indictment with conspiracy to distribute and
distribution of methamphetamine. On May 31, 2002, he pleaded guilty to the
conspiracy count in exchange for a dismissal of the other four counts.

       A presentence report was prepared detailing Hutman's criminal history, which
began when Hutman was eighteen. On January 14, 1982, Hutman was convicted of
sexual abuse for molesting a five-year-old child after he admitted to fondling the
child's penis in an attempt to masturbate him. He spent five months in jail, followed
by three years of probation.

       During the next two years, Hutman's probation officer filed two petitions to
revoke his probation. The first resulted from Hutman being charged with unlawful
flight from a law enforcement vehicle (while riding a motorcycle without a taillight,
Hutman fled at speeds up to 70 mph when police tried to stop him), a charge for
which he was sentenced on August 30, 1982. Probation was reinstated on the sex
abuse conviction, and Hutman was sentenced to three more years of probation on the
unlawful flight conviction. The second petition to revoke probation was filed on
January 10, 1984, after Hutman was charged with theft and trafficking in stolen
property. The theft and trafficking charges were dismissed when Hutman's probation
on both the sex abuse and unlawful flight convictions was reinstated. He was
discharged from probation on both convictions in 1985.

      Hutman received his third conviction at the age of twenty-four when he was
convicted of the offense of failure to appear and spent one day in jail.

                                         -2-
      Hutman's fourth criminal conviction occurred when he was thirty years old.
In July 1992, Hutman and another person entered a storage area at an apartment
complex through a broken window. The two stole five paint containers, two doors,
and some plumbing fixtures. On April 7, 1993, Hutman was convicted of burglary
in the third degree and sentenced to four years of probation with six months
imprisonment deferred until October 1, 1993. He successfully petitioned the
sentencing court twice to further defer the jail sentence while he received mental
health counseling. In September 1994 the court deleted the six-month jail sentence
altogether because of Hutman's progress while on probation, and on July 5, 1995,
Hutman was discharged from probation.

       Hutman's fifth conviction occurred when he was thirty-six years of age. On
June 14, 1999, the Iowa State Patrol stopped Hutman for speeding on Interstate 80.
After the arresting officer noticed the smell of marijuana emanating from the car, he
performed a routine weapons pat-down search on Hutman and discovered three
bundles of cash (totaling $4259) bound with electrical tape in Hutman's front and rear
pockets. A subsequent search of the vehicle uncovered 3.5 ounces of
methamphetamine in the passenger's purse. When the officer found the drugs,
Hutman's passenger screamed, "It's not mine, Donny please tell them where it came
from." Additional evidence indicated Hutman was trafficking methamphetamine
between Arizona and Iowa: a Fed Ex receipt was found in Hutman's wallet for a
package sent between the two states. On October 25, 1999, Hutman received a ten-
year suspended sentence for possession of a controlled substance with intent to
deliver, followed by five years of probation.

       Most of Hutman's convictions occurred too long ago to count in his criminal
history, see United States Sentencing Guideline (U.S.S.G.) § 4A1.2(e), so the
presentence report assigned him a total of four points (one for the burglary, one for
the prior drug offense, and two for committing the instant offense while on probation)
placing him in Criminal History Category III. Hutman's prior burglary and drug

                                         -3-
convictions count as crimes of violence under the career offender provisions of §
4B1.1, however, and automatically place him in Criminal History Category VI.

       At his sentencing hearing, Hutman objected to his status as a career offender.
He contended the 1992 conviction for burglary of a commercial structure should not
count as one of the two predicate offenses required for career offender status. In the
alternative, Hutman argued Criminal History Category VI overstated the seriousness
of his criminal history, and moved the district court to depart downward pursuant to
U.S.S.G. § 4A1.3.1 The district court denied Hutman's objection to career offender
status, but granted the motion for a downward departure by reducing Hutman's
Criminal History Catergory from VI to III, and his offense level from 34 to 30,
resulting in a sentencing range of 121-151 months. The government filed a timely
appeal of the downward departure, and Hutman filed a timely cross-appeal of the
determination that his 1992 burglary offense constituted a predicate offense for career
offender purposes.

                                           II

      Under the PROTECT Act of 2003, Pub. L. No. 108-21 § 401, 117 Stat. 650,
657 (2003), amending 18 U.S.C. § 3742(e) effective April 30, 2003, we review de
novo the issue whether a departure is justified given the particular facts of a case. See
United States v. Aguilar-Portillo, 334 F.3d 744, 749-50 (8th Cir. 2003) (applying the

      1
          U.S.S.G. § 4A1.3 provides in relevant part that

      [t]here may be cases where the court concludes that a defendant's
      criminal history category significantly over-represents the seriousness
      of a defendant's criminal history or the likelihood that a defendant will
      commit further crimes. An example might include the case of a
      defendant with two minor misdemeanor convictions close to ten years
      prior to the instant offense and no other evidence of prior criminal
      behavior in the intervening period.

                                           -4-
PROTECT Act to a pending appeal); United States v. Mejia, 844 F.2d 209, 211 (5th
Cir. 1988) ("A change in the standard of review is properly characterized as
procedural rather than substantive [and therefore can be applied to a pending appeal
without violating the Ex Post Facto clause] because it neither increases the
punishment nor changes the elements of the offense or the facts that the government
must prove at trial.").

       Four prior decisions guide our analysis in determining whether a downward
departure is appropriate given the facts of this case. In the first two cases, United
States v. Smith, 909 F.2d 1164 (8th Cir. 1990), and United States v. Senior, 935 F.2d
149 (8th Cir. 1991), we upheld decisions to depart downward despite a defendant's
status as a career offender. Smith involved a young defendant with a brief criminal
career, who committed the two predicate offenses used to trigger career offender
status within a two-month period at the age of nineteen. 909 F.2d at 1169.

        Similarly, the defendant in Senior was relatively young when he committed the
predicate offenses used to trigger career offender status. When he was twenty, he
"robbed two Pizza Hut restaurants on the same night, and another Pizza Hut three
weeks later." 935 F.2d at 150. The state courts treated the three robberies '"as more
or less one criminal episode[,]'" because concurrent sentences were imposed. Id. at
151 (quoting the district court). Senior was paroled after spending three years in
prison. Id. When Senior was twenty-four, he sold Dilaudid to an undercover officer,
then fourteen days later possessed another controlled substance. A state court again
treated the two incidents as one, consolidating them for sentencing and imposing
concurrent sentences. Senior was paroled after spending eighteen months in prison.
Id. at 150-51.

      In the two more recent decisions, United States v. McNeil, 90 F.3d 298 (8th
Cir. 1996), and United States v. Butler, 296 F.3d 721 (8th Cir. 2002), we reversed
downward departures from the career offender provisions. McNeil had two breaking-

                                         -5-
and-entering convictions that triggered career offender status, one of which he
committed when he was seventeen. In departing downward, the district court "looked
at McNeil's age at the time he committed the prior predicate felonies, some of the
circumstances of their occurrences, and how the state courts handled the cases."
McNeil, 90 F.3d at 301. While noting those were all "proper factors to consider," we
concluded the district court "committed a clear error of judgment in its assessement
of the many significant aspects of McNeil's criminal history." Id. We then
summarized a criminal history that spanned twenty years, with periods of probation
that had "not deterred [McNeil] from the commission of further crime." Id. at 302.

       Similarly, in Butler we held a district court abused its discretion in departing
downward from career offender status. Butler's criminal history included a number
of crimes but just two felonies, a robbery committed in 1988 when Butler was
seventeen and a conviction for sexual abuse committed when he was nineteen. 296
F.3d at 723-24. The district court departed downward presumably because of Butler's
youth at the time he committed the crimes, and because the robbery was non-violent
(Butler robbed a house in the daytime, took precautions to make sure the house was
unoccupied, and took only three items). Id. We reversed, recounting the details of
the sexual assault and concluding the district court failed to consider adequately the
seriousness of that predicate offense, id. at 724-25, or the fact that Butler had a
seventeen-year criminal career which "indicate[d] a pattern of serious criminal
activity." Id. at 725.

      When read together, Smith, Senior, McNeil and Butler indicate a downward
departure from career offender status may be appropriate for a relatively young
defendant with a brief criminal career, but even in those instances a departure is
appropriate only if it "accurately reflect[s] the entire record of the defendant's
criminal history." McNeil, 90 F.3d at 301.




                                         -6-
       Hutman is not a young defendant with a brief criminal history. He broke the
law in his teens, twenties, thirties, and now with this offense, his forties. He has six
criminal convictions spanning twenty-one years and four decades of his life. Unlike
Smith and Senior, Hutman was well into his adult years when he committed the two
predicate offense that triggered the career offender guidelines. Like McNeil, prior
stints of probation have not deterred Hutman from the commission of further crime.
Three times he has had probation revocation petitions filed against him for
committing additional crimes while on probation, and the instant drug offense was
committed while he was on probation from a prior drug offense. Like Butler, Hutman
has a serious conviction for sexual assault. The district court apparently discounted
this conviction because Hutman received no criminal history points for it. Our
decisions in McNeil and Butler make clear, however, that the seriousness of the
defendant's entire criminal history must be considered before departing from the
guideline's career offender provisions.

      In sum, a downward departure in this case would not accurately reflect Mr.
Hutman's entire criminal history. Mr. Hutman should be sentenced without departing
from the career offender provisions. We therefore reverse and remand for
resentencing consistent with this opinion.

                                          III

       Reviewing de novo the district court's conclusion that Hutman's 1992 burglary
of a commercial structure was a predicate offense for career offender status, United
States v. Fountain, 83 F.3d 946, 949 (8th Cir. 1996), we affirm. See United States v.
Blahowski, 324 F.3d 592, 595-596 (8th Cir. 2003) (collecting, discussing, and
reaffirming prior Eighth Circuit cases which hold the burglary of a commercial




                                          -7-
structure counts as a "crime of violence"); see also United States v. Reynolds, 116
F.3d 328, 329 (8th Cir. 1997) ("One panel may not overrule another.").

      A true copy.

            Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -8-
