United States v. Donald Keith Kroeger, 229 F.3d 700 (8th Cir. 2000). · Go Syfert
United States v. Donald Keith Kroeger, 229 F.3d 700 (8th Cir. 2000). Cases Citing This Book View Copy Cite
29 citation events (29 in the last 25 years) across 5 distinct courts.
Strongest positive: United States v. Villareal (ca4, 2009-11-06)
Treatment trajectory · 2001 → 2026 · click a year to view as-of
2001 2013 2026
Top citers, strongest first. 21 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Villareal
4th Cir. · 2009 · confidence medium
United States v. Kroeger, 229 F.3d 700, 703-04 (8th Cir.2000) (“[T]he most serious count is not the count with the greatest available maximum statutory term of imprisonment; it is the count with the highest offense level”); United States v. Evans, 318 F.3d 1011, 1020 (10th Cir.2003) (same).
discussed Cited as authority (rule) United States v. Hearne
4th Cir. · 2008 · confidence medium
See United States v. Eversole, 487 F.3d 1024, 1032-34 (6th Cir.), cert. denied, — U.S. -, 128 S.Ct. 649 , 169 L.Ed.2d 516 (2007); United States v. Evans, 318 F.3d 1011, 1020 (10th Cir.2003); United States v. Kroeger, 229 F.3d 700, 703 (8th Cir.2000).
discussed Cited as authority (rule) United States v. Eversole
6th Cir. · 2007 · confidence medium
United States v. Kroeger, 229 F.3d 700, 703-04 (8th Cir. 2000) (“reject[ing] Kroeger’s argument, and the Ninth Circuit’s approach, because both rest on an erroneous understanding of the Guidelines. . . . [T]he most serious count is not the count with the greatest available maximum statutory term of imprisonment; it is the count with the highest offense level”); United States v. Evans, 318 F.3d 1011, 1020 (10th Cir. 2003) (same).
discussed Cited as authority (rule) United States v. Darrell Eversole (2×)
6th Cir. · 2007 · confidence medium
United States v. Kroeger, 229 F.3d 700, 703-04 (8th Cir. 2000) ("reject[ing] Kroeger's argument, and the Ninth Circuit's approach, because both rest on an erroneous understanding of the Guidelines.... [T]he most serious count is not the count with the greatest available maximum statutory term of imprisonment; it is the count with the highest offense level"); United States v. Evans, 318 F.3d 1011, 1020 (10th Cir. 2003) (same). 55 We hold, therefore, that when grouping offenses under U.S.S.G. § 3D 1. 3, the "most serious" offense shall be determined by looking to the offense levels of the compe…
cited Cited as authority (rule) United States v. Christopher Warren
8th Cir. · 2004 · confidence medium
United States v. Kroeger, 229 F.3d 700, 702 (8th Cir. 2000).
cited Cited as authority (rule) United States v. Christopher Warren
8th Cir. · 2004 · confidence medium
United States v. Kroeger, 229 F.3d 700, 702 (8th Cir.2000).
discussed Cited as authority (rule) UNITED STATES OF AMERICA, — v. WILLIAM MICHAEL FORTNEY, —
8th Cir. · 2004 · confidence medium
In United States v. Kroeger, we applied § 2D 1.10 to a similar group of offenses prior to Amendment 608 and held that the endangering count “set the offense level for the group” because § 3D 1.3(a) expressly provides that the most serious offense is the one with the highest guidelines offense level, not the one with the highest statutory maximum penalty. 229 F.3d 700, 703 (8th Cir.2000); accord United States v. Evans, 318 F.3d 1011, 1020 (10th Cir.), cert. denied, — U.S. -, 123 S.Ct. 2291 , 156 L.Ed.2d 143 (2003).
discussed Cited as authority (rule) United States v. Wm. Michael Fortney
8th Cir. · 2004 · confidence medium
In United States v. Kroeger, we applied § 2D1.10 to a similar group of offenses prior to Amendment 608 and held that the endangering count “set the offense level for the group” because § 3D1.3(a) expressly provides that the most serious offense is the one with the highest guidelines offense level, not the one with the highest statutory maximum penalty. 229 F.3d 700, 703 (8th Cir. 2000); accord United States v. Evans, 318 F.3d 1011, 1020 (10th Cir.), cert. denied, 123 S. Ct. 2291 (2003).
discussed Cited as authority (rule) United States v. Billie Jerome Allen
8th Cir. · 2004 · confidence medium
In Maynie, we noted that “[i]n previous cases . . . we have found a defendant’s substantial rights were affected where correction of the error would result in a lesser term of imprisonment.” 257 F.3d at 919 (citing, from this circuit, United States v. Kroeger, 229 F.3d 700, 702 (8th Cir. 2000) (holding that error causing sentence to exceed authorized Guideline sentence by thirty months affects substantial rights), and United States v. Comstock, 154 F.3d 845, 850 (8th Cir. 1998) (recognizing that substantial rights were “clearly affected” where defendant would serve seventeen months l…
discussed Cited as authority (rule) UNITED STATES OF AMERICA, — v. BILLIE JEROME ALLEN, — (2×)
8th Cir. · 2004 · confidence medium
In Maynie , we noted that “[i]n previous cases ... we have found a defendant’s substantial rights were affected where correction of the error would result in a lesser term of imprisonment.” 257 F.3d at 919 (citing, from this circuit, United States v. Kroeger, 229 F.3d 700, 702 (8th Cir.2000) (holding that error causing sentence to exceed authorized Guideline sentence by thirty months affects substantial rights), and United States v. Comstock, 154 F.3d 845, 850 (8th Cir.1998) (recognizing that substantial rights were “clearly affected” where defendant would serve seventeen months less…
cited Cited as authority (rule) United States v. Evans
10th Cir. · 2003 · confidence medium
Kroeger, 229 F.3d at 703 (citations omitted and emphasis added).
discussed Cited as authority (rule) United States v. Devon Julian Bradford, Also Known as Devo, United States of America v. Dana E. Boswell, Also Known as Blue, United States of America v. Howard L. Harrison, Also Known as Big Bull, Also Known as Bull United States of America v. Phillip D. Banks, Also Known as Debo, Also Known as Philbo, United States of America v. Joseph D. Andrews, Also Known as Jo Jo
8th Cir. · 2001 · confidence medium
United States v. Kroeger, 229 F.3d 700, 703 (8th Cir. 2000) (interpreting U.S.S.G. 5G1.2 and its accompanying comment); United States v. Ervasti, 201 F.3d 1029, 1045-46 (8th Cir. 2000) (finding that the "'total punishment' is the precise sentence determined by the sentencing judge from within the appropriate guidelines range").
discussed Cited as authority (rule) United States v. Devon J. Bradford (2×)
8th Cir. · 2001 · confidence medium
United States v. Kroeger, 229 F.3d 700, 703 (8th Cir. 2000) (interpreting U.S.S.G. § 5G1.2 and its accompanying comment); United States v. Ervasti, 201 F.3d 1029, 1045-46 (8th Cir. 2000) (finding that the "'total punishment' is the precise sentence determined by the sentencing judge from within the appropriate guidelines range").
cited Cited as authority (rule) United States v. Glenn Valentine
8th Cir. · 2001 · confidence medium
See U.S.S.G. § 5G1.2(d); United States v. Sturgis, 238 F.3d 956, 960-61 (8th Cir.2001); United States v. Kroeger, 229 F.3d 700, 703 (8th Cir.2000).
discussed Cited "see" United States v. Bruce Dewayne Jensen (2×)
8th Cir. · 2006 · signal: see · confidence high
See United States v. Kroeger, 229 F.3d 700, 702 (8th Cir.2000) (concluding error that increased defendant’s sentence by 30 months affected his substantial rights); United States v. Comstock, 154 F.3d 845, 850 (8th Cir.1998) (concluding error that increased defendant’s sentence by 17 months affected his substantial rights).
discussed Cited "see" United States v. Keith Maynie
8th Cir. · 2001 · signal: see · confidence high
See United States v. Kroeger, 229 F.3d 700, 702 (8th Cir. 2000) (holding that error causing sentence to exceed authorized Guideline sentence by 30 months affects substantial rights); United States v. Comstock, 154 F.3d 845, 850 (8th Cir. 1998) (recognizing that substantial rights were affected where defendant would serve 17 months less if the error had not occurred); see also United 5 Maynie argues the two convictions relied upon by the district court to enhance his sentence to life under § 841(b)(1)(A) are not "felony drug offense[s]" within the meaning of the statute.
discussed Cited "see" United States v. Keith Maynie, Jr., United States of America v. Dietrick Lavon Banks, United States of America v. Lenora Logan
8th Cir. · 2001 · signal: see · confidence high
See United States v. Kroeger, 229 F.3d 700, 702 (8th Cir.2000) (holding that error causing sentence to exceed authorized Guideline sentence by 30 months affects substantial rights); United States v. Comstock, 154 F.3d 845, 850 (8th Cir.1998) (recognizing that substantial rights were affected where defendant would serve 17 months less if the error had not occurred); see also United States v. Robinson, 250 F.3d 527, 529 (7th Cir.2001) (noting there was “no question” an Apprendi error affected substantial rights where defendant’s sentence exceeded authorized sentence by 20 years); United St…
discussed Cited "see" United States v. Daryl S. Butler
8th Cir. · 2001 · signal: see · confidence high
See United States v. Kroeger, 229 F.3d 700, 702 (8th Cir.2000) (sentencing error affected defendant’s substantial rights and fairness of proceedings); United States v. Comstock, 154 F.3d 845, 850 (8th Cir.1998) (same); see also United States v. Nicholson, 231 F.3d 445 , 453-55 (8th Cir.2000) (.Apprendi errors required resentencing); United States v. Page, 232 F.3d 536, 545 (6th Cir.2000) (.Apprendi errors affected defendant’s substantial rights and fairness of proceedings), petition for cert. filed, (U.S. Jan. 3, 2001) (No. 00-7751).
discussed Cited "see" United States v. Daryl S. Butler
8th Cir. · 2001 · signal: see · confidence high
See United States v. Kroeger, 229 F.3d 700, 702 (8th Cir. 2000) (sentencing error affected defendant's substantial rights and fairness of proceedings); United States v. Comstock, 154 F.3d 845, 850 (8th Cir. 1998) (same); see also United States v. Nicholson, 231 F.3d 445 , 453-55 (8th Cir.2000) (Apprendi errors required resetencing); United States v. Page, 232 F.3d 536, 545 (6th Cir. 2000) (Apprendi errors affected defendant's substantial rights and fairness of proceedings), petition for cert. filed, (U.S. Jan. 3, 2001) (No. 00-7751).
discussed Cited "see" United States v. Calvin Yakle
8th Cir. · 2001 · signal: see · confidence high
See United States v. Kroeger, 229 F.3d 700, 702 (8th Cir.2000) (defendant’s substantial rights were affected when district court’s error resulted in his sentence exceeding maximum Guidelines sentence by 30 months); United States v. Nordby, 225 F.3d 1053, 1061 (9th Cir.2000) (fairness is undermined when court’s Apprendi error imposes longer sentence than might have been imposed had court not plainly erred); United States v. Comstock, 154 F.3d 845, 850 (8th Cir.1998) (17-month sentencing error affected defendant’s substantial rights and fairness of sentencing proceedings).
discussed Cited "see, e.g." United States v. Ochoa-Heredia
N.D. Iowa · 2001 · signal: see also · confidence medium
See United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir.2000); see also United States v. Kroeger, 229 F.3d 700, 703 (8th Cir.2000) (rejecting Brinton on the question of grouping offenses for purposes of determining offense level). 11 .
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Donald Keith KROEGER, Appellant
99-3411.
Court of Appeals for the Eighth Circuit.
Oct 13, 2000.
229 F.3d 700
Charles H. Nadler, argued, Cedar Rapids, IA, for Appellant., Stephanie M. Rose, Asst.U.S.Atty., argued, Cedar Rapids, IA, for Appellee.
Bowman, Magill, Hansen.
Cited by 26 opinions  |  Published
HANSEN, Circuit Judge.

While responding to a fire at Donald Keith Kroeger’s residence, authorities discovered a methamphetamine laboratory. After a jury trial, Kroeger was convicted of manufacturing and attempting to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and endangering human life while doing so, in violation of 21 U.S.C. §§ 841(a)(1) and 858. The district court sentenced him to concurrent terms of 240 months imprisonment and 5 years supervised release on the manufacturing count, and 120 months imprisonment and 3 years supervised release on the endangering-life count. Kroeger appeals his sentence, and we reverse for the reasons discussed below.

I

The presentence report (PSR) grouped the counts because they were closely related, and determined the group’s offense level on the basis of the endangering-life count because it was the more serious count. Applying U.S.S.G. § 2D1.10(a)(l), the PSR calculated a base offense level of[*702] 35 by adding 3 to the level 32 specified in the drug-quantity table, U.S.S.G. § 2D1.1(c)(4), for the 225.2 grains of methamphetamine Kroeger possessed and was capable of producing. The PSR then applied a 2-level enhancement under U.S.S.G. § 2D1.1(b)(5) because the offense involved the unlawful discharge, emission, or release into the environment of hazardous or toxic substances, or the unlawful transportation, treatment, storage, or disposal of hazardous waste. The defendant was sentenced to 240 months of confinement which was near the midpoint of the 210- to 262-month range for a level 37, criminal history category I offender.

Kroeger objected to using the endangering-life count to set the offense level for the group, arguing that the group’s offense level should be set by the manufacturing count because that count carried a greater maximum prison term. He also objected to the application of the environmental-harm enhancement, contending that it constituted double-counting and was unsupported by the facts. The district court overruled these objections.

On appeal, Kroeger renews his arguments that the manufacturing count should have set the offense level for the group and that the environmental-harm enhancement should not have been applied. Although the government responds that these arguments lack merit, it discloses a possible reason-not raised below or on appeal by Kroeger-why the environmental-harm enhancement should not have been applied. We focus on this issue.

II

The base offense level for the endangering-life count was correctly calculated under section 2D1.10(a)(1) by adding 3 to the offense level established by the drug-quantity table in section 2D 1.1. See United States v. Loos, 165 F.3d 504, 506-07 (7th Cir.1998), cert. denied, 525 U.S. 1169, 119 S.Ct. 1090, 143 L.Ed.2d 90 (1999). The environmental-harm enhancement found in section 2D1.1(b)(5) should not have been applied, however, because section 2D1.10(a)(1) directs only that the drug-quantity table be used and does not refer to the rest of section 2D1.1. An instruction to use a particular table from another offense Guideline refers only to the table, not to the entire offense Guideline, see U.S.S.G. § lB1.5(b)(2), and this applies specifically to section 2D1.10(a)(l)’s reference to the drug-quantity table, see id., comment, (n. 1).

Kroeger’s failure to raise this argument below or on appeal does not prevent us from considering it. See United States v. Miller, 152 F.3d 813, 815 (8th Cir.1998). When a district court errs, the error is clear under current law, and the error affects the defendant’s substantial rights, we may exercise our discretion to remedy the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See United States v. Montanye, 996 F.2d 190, 192 (8th Cir.1993) (en banc).

In light of the Guidelines provisions explored above, we are persuaded that the district court erred and that the error was clear under current law (i.e., the Guidelines themselves). We are aware of no case law interpreting section lB1.5(b)(2) differently. See, e.g., United States v. Laihben, 167 F.3d 1364, 1366 n. 2 (11th Cir.), cert. denied,. denied, 527 U.S. 1029, 119 S.Ct. 2383, 144 L.Ed.2d 785 (1999); United States v. Cho, 136 F.3d 982, 984 (5th Cir.1998). We also conclude that the error affected Kroeger’s substantial rights: when the environmental-harm enhancement to the endangering-life count is removed, the offense level is reduced from 37 to 35, and the resulting Guidelines imprisonment range is reduced from 210-262 months to 168-210 months. Kroeger’s 240-month sentence thus exceeds the maximum Guidelines sentence by 30 months. See United States v. Comstock, 154 F.3d 845, 850 (8th Cir.1998) (defendant’s “substantial rights were clearly affected because, as he was sentenced, he would end[*703] up serving 17 more months in prison than he might have served had. he been sentenced absent the error”).

Finally, we deem it appropriate to exercise our discretionary reversal power in these circumstances. See id. (reversing because 17-month sentencing error seriously affected fairness of sentencing proceedings); United States v. Marsanico, 61 F.3d 666, 668 (8th Cir.1995) (reversing because not correcting 21-month sentencing error would result in miscarriage of justice). While it is understandable that the district court overlooked this issue-neither the parties nor the probation officer who prepared the PSR brought it to the court's attention-justice requires that Kroeger be resentenced under a correct application of the Guidelines. See United States v. Lamb, 207 F.3d 1006, 1009 (7th Cir.2000) ("No one spelled out for the district judge's benefit how [this guideline] works, and it is hard to blame the judge for not [applying it] on his own. But the application of this guideline is straightforward and has a direct effect on [the defendant's] sentence, so we deem the oversight plain error.").

Ill

In view of our decision to reverse and remand the case on the basis that the environmental-harm enhancement was misapplied, we need not reach Kroeger’s arguments that its application constituted impermissible double-counting and was factually unsupported. See United States v. Brown, 33 F.3d 1002, 1005 (8th Cir.1994). We do reach his argument regarding which count should set the offense level for the group, however, and find it to be without merit.

Kroeger argues that the group’s offense level should be set by the manufacturing count because it carries a greater maximum term of imprisonment (life) than does the endangering-life count (10 years). See 21 U.S.C. §§ 841(b)(l)(A)(viii) and 858. He relies exclusively on United States v. Brinton, 139 F.3d 718 (9th Cir.1998), in which the defendant was convicted of a variety of charges, including the same type of manufacturing and endangering-life offenses present in the instant case. The Ninth Circuit held that, in grouping the counts, the offense level for the group should be set by the manufacturing count because it carried the greater statutory maximum sentence and thus had “the potential to produce the highest offense level.” See id. at 722.

We reject Kroeger’s argument, and the Ninth Circuit’s approach, because both rest on an erroneous understanding of the Guidelines. When counts are grouped, the “most serious” of the grouped counts sets the offense level for the group. But the most serious count is not the count with the greatest available maximum statutory term of imprisonment; it is the count with the highest offense level. See U.S.S.G. § 3D1.3(a) (most serious count is one with “the highest offense level of the counts in the Group”) & comment, (n. 2) (when counts are grouped, “the highest offense level of the counts in the group is used”); United States v. Whatley, 133 F.3d 601, 607 (8th Cir.) (when counts are grouped, count with highest offense level sets offense level for group), cert. denied, 524 U.S. 940, 945, 118 S.Ct. 2347, 2357, 141 L.Ed.2d 717, 726 (1998); United States v. Nguyen, 46 F.3d 781, 783 (8th Cir.1995) (same).

In concluding that the count with the greatest statutory maximum sentence had the potential to produce the highest offense level, the Brinton court went astray: the statutory maximum may cap the Guidelines imprisonment range, but it has no effect on the offense level. The Ninth Circuit’s analysis also overlooked the fact that when a defendant is sentenced on multiple counts, the statutory maximum for any one count does not cap the total punishment he can receive. See U.S.S.G. § 5G1.2 & comment.; United States v. Er-vasti, 201 F.3d 1029, 1045-46 (8th Cir.2000).

[*704] The district court correctly concluded that the endangering-life count was the more serious of the grouped counts and correctly used it to set the offense level for the group. Even after subtracting the environmental-harm enhancement from the endangering-life count’s offense calculations, that count remains the more serious count and sets the group’s offense level. [1]

IV

For the reasons set forth above, we reverse the sentence imposed by the district court, and we remand for resentenc-ing consistent with this opinion.

1

. We express no opinion as to whether the environmental-harm enhancement could be applied to the manufacturing count, because the issue is not before us. We merely note that it would not change the most-serious-count analysis because, if the enhancement were applied, the manufacturing count’s offense level would be 34, which is still less than the endangering-life count’s offense level of 35.