                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-2216
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                               Angel Lynnette Walker

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                    for the Northern District of Iowa - Dubuque
                                   ____________

                             Submitted: April 13, 2020
                               Filed: June 4, 2020
                                 [Unpublished]
                                 ____________

Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
                           ____________

PER CURIAM.

      Angel Lynnette Walker pled guilty to two counts in a seven-count indictment:
conspiracy to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a),
841(b)(1)(B), and 846; and possession of a firearm during a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1)(A). The district court1 sentenced her to a within-
Guidelines sentence of 66 months’ imprisonment on the drug conspiracy offense2 and
a consecutive term of 60 months on the firearm offense.3 Walker argues the court
erred when it included as part of her criminal history score one point for each of her
two prior state convictions for possession of drug paraphernalia. She asserts that
because the paraphernalia involved in the state convictions consisted of straws with
methamphetamine residue, those convictions should have been considered relevant
conduct in this case. Finding no clear error, we affirm.

I.    Background

       Law enforcement officers conducted a traffic stop on Walker’s vehicle on May
4, 2018, and within the vehicle they discovered a Hi-Point 9mm pistol and drug
paraphernalia consisting of a metal container and two straws each with
methamphetamine residue. Walker pled guilty in Dubuque County, Iowa, state court
for possession of drug paraphernalia, and in August 2018 was sentenced by the court
to pay a fine. A confidential informant made two controlled buys of methamphetamine
from Walker–the first buy occurred on May 16, 2018, and the second one occurred on
May 25, 2018. On May 27, 2018, law enforcement officers again stopped Walker’s
vehicle. During this search, officers located a magnetic box containing a straw that
tested positive for methamphetamine. Walker pled guilty in Dubuque County, Iowa,
state court for possession of drug paraphernalia, and in August 2018 was sentenced
by the court to pay a fine.


      1
        The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
      2
      The conspiracy offense carried a mandatory minimum sentence of 5 years and
a maximum of 40 years. 21 U.S.C. § 841(b)(1)(B).
      3
     The firearm offense carried a minimum consecutive term of 5 years and a
maximum term of life. 18 U.S.C. § 924(c)(1)(A).

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       Walker’s vehicle was stopped a third time by law enforcement on May 31,
2018. Officers discovered 5.32 grams of actual methamphetamine on Walker and
1.16 grams of methamphetamine divided into three separate baggies on the floorboard
of her vehicle. On this same day, officers executed a search warrant at Walker’s
residence. Inside her bedroom, officers found a loaded Raven Arms, Model MP-25,
.25 auto caliber pistol, a box of .25 caliber ammunition, and drug paraphernalia.
During an interview with law enforcement officers, Walker admitted to using the
pistols for protection and to selling 42.36 grams of “ice” methamphetamine to others.
Walker was indicted in December 2018 on four drug-related offenses and three
firearm offenses. She stipulated as part of her plea agreement that the .25 caliber
pistol found by law enforcement inside her bedroom was used in furtherance of the
conspiracy to distribute methamphetamine and that the appropriate drug quantity
attributable to her under the Sentencing Guidelines was at least 20 grams of “ice”
methamphetamine.

       The Presentence Investigation Report (“PSIR”) classified Walker’s two drug
paraphernalia convictions as “prior sentences” for purposes of U.S.S.G. § 4A1.1 and
assigned the convictions a total of two points. Walker objected and, at sentencing,
argued that the convictions were relevant conduct because (1) the temporal and
geographic proximity of the paraphernalia offenses overlapped with the conspiracy
offense, (2) the paraphernalia offenses were part of a “common scheme” that would
have been used by the government as part of its proof for the conspiracy offense, and
(3) the methamphetamine residue could have been considered relevant conduct for
calculating drug quantity. The district court disagreed, explaining that there was a
distinction between drug users possessing paraphernalia and those conspiring to
distribute controlled substances and that it was mere speculation that the government
would have introduced evidence of Walker’s drug paraphernalia possession to prove
that Walker conspired to distribute methamphetamine.




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       While the court found the PSIR properly calculated Walker’s criminal history
score, it granted Walker’s downward departure motion under U.S.S.G. § 4A1.3(b),
finding that criminal history category III substantially overstated the seriousness of
Walker’s criminal history and likelihood of recidivism. After moving her to category
II and with a total offense level of 25, Walker’s advisory Guidelines range was 63 to
78 months on the drug offense. After considering the factors set forth in 18 U.S.C.
§ 3553(a), the court determined that the appropriate sentence was a term of 66 months
on the drug offense. The court imposed the mandatory consecutive term of 60 months
on the firearm offense.

       Walker argues on appeal that the court should have placed her in criminal
history category I, which would have resulted in a Guidelines range of 57 to 71
months, but because of the applicable mandatory minimum the range would have been
60 to 71 months. Walker acknowledges that the most her sentence could be reduced
by is six months.

II.   Discussion

       We review “prior sentence” and “relevant conduct” determinations for clear
error, “remembering that such a determination is fact-intensive and well within the
district court’s sentencing expertise and greater familiarity with the factual record.”
United States v. Boroughf, 649 F.3d 887, 890 (8th Cir. 2011) (internal quotations
omitted). “When calculating criminal history points, a sentencing court is to consider
any sentence previously imposed for conduct not part of the instant offense.” United
States v. Hernandez, 712 F.3d 407, 409 (8th Cir. 2013) (cleaned up). Under
§ 4A1.1(c) of the Sentencing Guidelines, a court is to add one criminal history point,
up to a total of four points, for each conviction where the prior sentence of
imprisonment was less than 60 days. In determining whether a prior conviction
should be scored in the criminal history calculation, we have applied the following
factors: “temporal and geographical proximity, common victims, common scheme,

                                         -4-
charge in the indictment, and whether the prior conviction is used to prove the instant
offense.” United States v. Pinkan, 675 F.3d 1088, 1091 (8th Cir. 2012) (quoting
United States v. Ault, 598 F.3d 1039, 1041 (8th Cir. 2010)).


       “When as in this case ‘the instant offense’ is a drug conspiracy and the prior
conviction was for a drug-related offense committed during the conspiracy period, the
question is whether the prior conduct was a ‘severable, distinct offense.’” Id. (quoting
United States v. Stone, 325 F.3d 1030, 1032 (8th Cir. 2003)). Without question, there
is temporal and geographic proximity. However, there was no allegation or other
indication that the government intended to tie Walker’s possession of drug
paraphernalia to the conspiracy. The government did not plead drug paraphernalia
possession either as an overt act in furtherance of the conspiracy or as a separate
charge. This court has noted that the victim of a drug paraphernalia offense is the user
herself, while the victims of a drug trafficking conspiracy are subsequent drug users.
Ault, 598 F.3d at 1041. The district court did not clearly err in finding Walker’s prior
drug paraphernalia convictions were severable and distinct from the conspiracy to
distribute methamphetamine offense. We conclude two criminal history points were
properly assessed for those convictions.


III.   Conclusion


       The judgment of the district court is affirmed.
                        ______________________________




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