United States of America v. Carmetrius Sanders

United States Court of Appeals
For the Eighth Circuit
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No. 20-3231
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Carmetrius Sanders
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 24, 2021
Filed: November 15, 2021
[Unpublished]
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Before SHEPHERD, WOLLMAN, and KOBES, Circuit Judges.
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PER CURIAM.
Carmetrius Sanders pleaded guilty to two counts of being a felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and was sentenced

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to 84 months’ imprisonment. Sanders appeals, arguing that the district court1 erred
in calculating his criminal history score under the U.S. Sentencing Guidelines
(Guidelines). We affirm.
According to the presentence report (PSR), Sanders was “[s]entenced to 80
days jail” for two separate misdemeanor convictions. The PSR thus assessed two
criminal history points each for those convictions. See U.S.S.G. § 4A1.1(b). Had the
sentences been less than 60 days, the convictions would have each been assessed only
one point. See U.S.S.G. § 4A1.1(c). Sanders claimed that the sentences exceeded 60
days only because he was unable to make bail. Accordingly, he moved for a
downward departure on the basis that his criminal history score was overstated. The
district court denied the motion and determined that Sanders’s total offense level was
23, his criminal history category was V, and his Guidelines sentencing range was 84
to 105 months’ imprisonment.
Sanders argues that the district court plainly erred in calculating his criminal
history score, because his inability to post bond is an improper basis on which to
assess criminal history points. See United States v. Gilliam, 934 F.3d 854, 861 (8th
Cir. 2019) (standard of review). His argument is foreclosed by United States v.
Drake, 942 F.2d 517 (8th Cir. 1991) (per curiam). In Drake, the defendant had spent
78 days in pretrial detention for a state offense and was sentenced to 78 days with
credit for time served. Id. at 518. The state sentencing court would have sentenced
him to only 20 days’ imprisonment had he posted bond. Id. In the federal matter, the
district court assessed two criminal history points because the sentence was more than
60 days. Id. We affirmed, concluding that “the Guidelines require the court to look
to the plain wording of the actual sentence imposed.” Id.
1The Honorable Stephen R. Clark, United States District Judge for the Eastern
District of Missouri.
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There is no meaningful distinction between Sanders’s case and Drake. Here,
we can rely on the PSR’s characterization of his sentence as being 80 days, because
Sanders did not object to this factual statement. See United States v. Humphrey, 753
F.3d 813, 818 (8th Cir. 2014) (“[U]nless a defendant objects to a specific factual
allegation contained in the PSR, the court may accept that fact as true for sentencing
purposes.” (quoting United States v. Arrieta-Buendia, 372 F.3d 953, 955 (8th Cir.
2004)). Nor did he offer any evidence to demonstrate that the court sentenced him
only to an ambiguous “time served” sentence. Based on the unobjected to statements
in the PSR, we conclude that the district court did not plainly err in assessing the two
criminal history points to each misdemeanor.
The judgment is affirmed.
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