In separate indictments, Don A. Schroers was charged with being a felon in possession of one or more firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1), and with conspiracy to possess with intent to distribute actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and 846. Schroers pleaded guilty to both counts. The district court
The United States Probation Office's presentence report (PSR) calculated Schroers's advisory sentencing range under the United States Sentencing Guidelines (Guidelines or U.S.S.G.). Because Schroers's counts of conviction were not closely related, the PSR grouped each count separately.
Schroers moved for a downward departure under U.S.S.G. § 4A1.3(b)(1), arguing that his criminal history category overstated the seriousness of his criminal history because it included 3 points for convictions of crimes that he had committed in 1994. Schroers was sentenced for those 1994 crimes after being sentenced for crimes that he had committed in 1995. He argued that had he been sentenced for the 1994 crimes first, he would have completed that sentence and those convictions would not have counted toward his criminal history category in the present case. Schroers also pointed out that he had committed the 1994 and 1995 crimes more than fifteen years ago and that he had not committed any violent crimes since then. The district court found that a criminal history category of IV was nonetheless appropriate, denied the downward departure, and imposed the concurrent sentences set forth above.
Schroers first argues that the district court erred in denying his motion for a downward departure. "[W]e generally will not review a district court's decision not to grant a downward departure `unless the district court had an unconstitutional motive or erroneously thought that it was without authority to grant the departure.'"
Schroers argues that the district court plainly erred when it sentenced him on the firearms offense to 120 months' imprisonment, the statutorily authorized maximum term of imprisonment.
The district court correctly calculated Schroers's advisory Guidelines sentencing range to be 188 to 235 months' imprisonment. It then correctly followed the procedure set forth in U.S.S.G. § 5G1.2, which instructs "the court [to] determine the total punishment and [to] impose that total punishment on each such count, except to the extent otherwise required by law." The district court determined Schroers's total punishment to be 144 months' imprisonment. It could not impose that sentence on the firearms count, however, because of the statutory 10-year maximum term of imprisonment on that count. The district court committed no error, and certainly no plain procedural error, by sentencing Schroers to the statutory maximum term of imprisonment on the firearms count.
The judgment is affirmed.