v.
James Paine
For the Eighth Circuit
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No. 17-3390
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
James Lewis Paine, also known as James L. Paine
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Council Bluffs
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Submitted: September 25, 2018
Filed: February 7, 2019
[Unpublished]
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Before SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.
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PER CURIAM.
In 2017, James Paine pled guilty to conspiring to distribute methamphetamine. Over Paine’s objection, the district court1 assigned Paine a criminal history point for minimum if certain requirements are met.” United States v. Barrera, 562 F.3d 899, 902 (8th Cir. 2009).
[*2]II. Standard of Review
“When reviewing the district court’s imposition of a sentence, we review ‘de novo the district court’s interpretation and application of the sentencing guidelines and statutes . . . .’” United States v. Barrientos, 670 F.3d 870, 873 (8th Cir. 2012) (citation omitted). We first look to see whether the district court committed a “significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). Mis- calculation of a defendant’s criminal history may constitute a significant procedural error. Barrientos, 670 F.3d at 873.
III. Discussion
In general, the Guidelines provide that misdemeanors are counted for the purposes of calculating a defendant’s criminal history score. See U.S.S.G. §§ 4A1.1, 4A1.2. The Guidelines, however, also provide a limited exception to this rule. Certain listed offenses, and “offenses similar” to them, are only counted if specific conditions are met. U.S.S.G. § 4A1.2(c)(1). In addition, certain other listed offenses, and “offenses similar” to them, are never counted. U.S.S.G. § 4A1.2(c)(2). The sole issue in this case is whether gathering, which is an unlisted offense, is similar to the listed offenses of disorderly conduct or loitering and thus should not be counted.
Iowa’s gathering statute states:
It is unlawful for any person to sponsor, promote, or aid, or assist in the sponsoring or promoting of a meeting, gathering, or assemblage with the knowledge or intent that a controlled substance be there distributed, used, or possessed, in violation of this chapter.
[*3]Any person who violates this section and where the controlled substance is any one other than marijuana is guilty of a class “D” felony.
Any person who violates this section, and where the controlled substance is marijuana only, is guilty of a serious misdemeanor. Iowa Code § 124.407 (2015).
To determine whether gathering is similar to disorderly conduct or loitering, the Guidelines direct us to apply the following test:
[T]he court should use a common sense approach that includes consideration of relevant factors such as (i) a comparison of punishments imposed for the listed and unlisted offenses; (ii) the perceived seriousness of the offense as indicated by the level of punishment; (iii) the elements of the offense; (iv) the level of culpability involved; and (v) the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct. U.S.S.G. § 4A1.2 cmt. n.12.
Serious misdemeanor gathering is not similar to disorderly conduct or loitering. In terms of punishment and perceived seriousness, gathering is punishable as either a felony or a serious misdemeanor. Iowa Code § 124.407 (2015). A serious misdemeanor, which is what Paine was convicted of, is punishable by up to one year’s imprisonment. Iowa Code § 903.1(1)(b). Paine cites no authority that suggests disorderly conduct and loitering are punishable by anything more than 30 days’ imprisonment.[2] The significant difference in punishment indicates that gathering is perceived as a more serious offense.
[*4]The elements of the offense, the level of culpability involved, and the likelihood of recidivism also indicate that serious misdemeanor gathering is not similar to disorderly conduct or loitering. To be convicted of serious misdemeanor gathering, a defendant must, at a minimum, assist in promoting an assemblage with knowledge that marijuana will be possessed. Iowa Code § 124.407 (2015). Thus, serious misdemeanor gathering has two elements that disorderly conduct and loitering do not: a drug element and a drug-related scienter element. See United States v. Millard, 139 F.3d 1200, 1209 (8th Cir. 1998) (“[T]he Iowa [gathering] statute contains an element of mental culpability directly related to a drug crime . . . .”); Iowa Supreme Court Bd. of Prof’l Ethics & Conduct v. Sloan, 692 N.W.2d 831, 832 (Iowa 2005) (referring to serious misdemeanor gathering as a “drug offense[]”). The drug element is significant because it indicates that serious misdemeanor gathering involves a higher level of culpability and a greater chance of recidivism than disorderly conduct and loitering. See United States v. Ruacho, 746 F.3d 850, 855 (8th Cir. 2014) (per curiam) (noting that “convictions involving illegal narcotics correlate strongly to recidivism”); cf. United States v. Foote, 705 F.3d 305, 308 (8th Cir. 2013) (“Drug possession ‘suggests a more calculating, a more resourceful, and a more dangerous criminal’ than someone who commits a minor traffic infraction.” (citation omitted)).
[*5]IV. Conclusion For the foregoing reasons, we affirm the judgment of the district court.
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