United States of America v. Corey Lamar Cullar

United States Court of Appeals
For the Eighth Circuit
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No. 23-1091
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United States of America
Plaintiff - Appellee
v.
Corey Lamar Cullar
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: April 9, 2024
Filed: June 14, 2024
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Before LOKEN, SHEPHERD, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Corey Lamar Cullar pleaded guilty to maintaining a home for the purpose of
distributing controlled substances, 21 U.S.C. § 856(a)(1). The district court1
imposed a top-of-the-Guidelines sentence of 240 months in prison. Cullar appeals,
1 The Honorable C.J. Williams, United States District Court for the Northern
District of Iowa.

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challenging the court’s Guidelines calculation and his sentence’s substantive
reasonableness. We affirm.
I.
When the dust settled at a hotly contested 4-day sentencing hearing, the
district court set Cullar’s base offense level at 22, U.S.S.G. § 2D1.1(c)(9), and added
2 levels for possessing a dangerous weapon, § 2D1.1(b)(1); 2 levels for maintaining
a drug premises, § 2D1.1(b)(12); 3 levels for having an aggravating role in the
offense, § 3B1.1(b); and 2 levels for having an aggravating role and using a minor
or obstructing justice, § 2D1.1(b)(16). All for a total offense level of 31.
But because the district court found that Cullar was a career offender, his
offense level increased to 32. § 4B1.1(b) (setting an offense level of 32 for career
offenders who commit an offense with a statutory maximum sentence of “20 years
or more, but less than 25” when 32 is greater than the “offense level otherwise
applicable”); § 856(b) (20-year maximum sentence). The court then declined to give
him a reduction for accepting responsibility. With a total offense level of 32 and a
criminal history category of VI, his Guidelines range was 210 to 240 months in
prison. See § 5G1.1(c) (capping the Guidelines range at the statutory maximum).
The district court imposed the statutory maximum sentence, explaining that
Cullar’s “supermarket[s]” for drugs were a “cancer on th[e] community.” This, the
court mused, was the “worst type of behavior” Congress envisioned when it set the
statutory maximum at 20 years.
II.
Cullar first claims that the district court procedurally erred by improperly
calculating his Guidelines range. He challenges its drug quantity finding, most of
its sentencing enhancements, and its denial of a reduction for accepting
responsibility. Second, he says that the court gave short shrift to his mitigating

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circumstances, so his sentence is substantively unreasonable. We review first for
procedural error and then if there is none for substantive reasonableness. United
States v. Jones, 89 F.4th 681, 684 (8th Cir. 2023).
A.
We make quick work of all but one of Cullar’s procedural challenges. The
district court’s drug quantity finding and sentencing enhancements were part and
parcel of its initial offense level calculation of 31. When the court deemed him a
career offender, the career offender guideline’s offense level of 32 took over.
Because his Guidelines range was driven by his career offender designation, which
he does not challenge on appeal, any error in the court’s drug quantity finding and
sentencing enhancements did not affect his Guidelines range and so is harmless. See
United States v. Wiggins, 747 F.3d 959, 965 (8th Cir. 2014) (any error in drug
quantity finding was harmless because the career offender guideline set the offense
level); see also United States v. Sigillito, 759 F.3d 913, 941 (8th Cir. 2014) (holding
any procedural error harmless because it did not affect the Guidelines range).
That leaves only the district court’s denial of a reduction for accepting
responsibility. See § 4B1.1(b) (courts decrease the offense level in the career
offender table if an “adjustment from § 3E1.1 (Acceptance of Responsibility)
applies”). Cullar gets two levels off if he “clearly demonstrates acceptance of
responsibility for his offense.” § 3E1.1(a). The court denied the reduction because
Cullar obstructed justice after pleading guilty by leaking documents that identified
a cooperator. We review the “denial of an acceptance of responsibility reduction for
clear error and will reverse only if it is so clearly erroneous as to be without
foundation.” United States v. Davis, 875 F.3d 869, 875 (8th Cir. 2017) (citation
omitted).
Acceptance of responsibility reductions are meant to distinguish “sincerely
remorseful defendant[s]” from the unrepentant. United States v. Cooper, 998 F.3d
806, 810 (8th Cir. 2021) (citation omitted). “Conduct resulting in an enhancement

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under § 3C1.1”2 for obstruction of justice “ordinarily indicates that the defendant
has not accepted responsibility for his criminal conduct.” § 3E1.1 cmt. n.4. But
there may be “extraordinary cases” where an obstructionist still gets a reduction. Id.
“A case is exceedingly unlikely to be extraordinary” where, as here, “the defendant
obstructs justice after pleading guilty.” United States v. Sandoval, 74 F.4th 918, 923
(8th Cir. 2023) (cleaned up) (citation omitted).
Cullar argues that he did not deserve the enhancement for obstructing justice
in the first place. He says that he mistakenly sent attorney-client material home and
that his son stumbled on the documents identifying the cooperator and posted them
on Facebook. The district court discredited the son’s testimony to that effect, calling
it “incredible.” The only reason Cullar would have sent attorney-client material
home after being repeatedly told to keep it confidential, it found, was to out and
intimidate the cooperator before the contested sentencing. This was a permissible
and reasonable inference from the undisputed facts, and it is not clearly erroneous.
See United States v. Rodamaker, 56 F.3d 898, 902 (8th Cir. 1995).
Even so, Cullar argues that his is the extraordinary case because he cooperated
with law enforcement and pleaded guilty. But he leaked the attorney-client material
after he pleaded guilty and still does not admit to that obstruction, see Sandoval, 74
F.4th at 923, which is “hardly emblematic of a sincerely remorseful defendant,” see
United States v. Chappell, 69 F.4th 492, 494 (8th Cir. 2023) (cleaned up) (citation
omitted). And “[m]erely pleading guilty does not entitle a defendant to this
2 Cullar received an enhancement under § 2D1.1(b)(16)(D), not § 3C1.1.
Compare § 2D1.1(b)(16)(D) (courts add two offense levels when a defendant with
an aggravating role “engaged in witness intimidation . . . or otherwise obstructed
justice in connection with the investigation or prosecution of the offense”), with
§ 3C1.1 & cmt. n.4(A) (courts add two offense levels when a defendant “willfully
obstructed . . . the administration of justice with respect to the investigation,
prosecution, or sentencing” of the offense, which includes witness intimidation).
But we accept the parties’ framing and assume that obstructive conduct under
§ 2D1.1(b)(16)(D) is equivalent to obstructive conduct under § 3C1.1.

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reduction.” Id. All told, we see no clear error in the district court’s conclusion that
Cullar’s conduct “belie[d] [his] claims of contrition.” Id. (citation omitted).
B.
Now to substantive reasonableness, which we review for abuse of discretion.
United States v. Levy, 18 F.4th 1019, 1023 (8th Cir. 2021). A district court abuses
its discretion when it “fails to consider a relevant factor that should have received
significant weight, gives significant weight to an improper or irrelevant factor, or
commits a clear error of judgment in weighing the appropriate factors.” Id. (citation
omitted). Where, as here, the court imposes a within-Guidelines sentence, we
presume the sentence is reasonable. United States v. Burns, 834 F.3d 887, 890 (8th
Cir. 2016).
Cullar fails to rebut the presumption. He argues that the district court gave
short shrift to a litany of mitigating facts, including that he is an employable middle-
aged man with seven children, strong family support, a history of substance abuse,
and heart problems. But the court knew all this and reasonably concluded that his
“egregious conduct” and “troubling” criminal history called for the statutory
maximum sentence. See United States v. Wisecarver, 644 F.3d 764, 774 (8th Cir.
2011) (sentencing courts may “assign relatively greater weight to the nature and
circumstances of the offense than to the mitigating personal characteristics of the
defendant” in weighing the 18 U.S.C. § 3553(a) factors).
At oral argument, Cullar argued for the first time that the district court gave
too much weight to the offense conduct Congress might have envisioned as
justifying the statutory maximum sentence. This argument comes too late. United
States v. Larison, 432 F.3d 921, 923 n.3 (8th Cir. 2006) (“We do not consider
arguments raised for the first time at oral argument.”).

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III.
We affirm the district court’s judgment.
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