United States of America v. Nicholas Lee Scott

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-3429
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Nicholas Lee Scott
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Jefferson City
____________
Submitted: June 10, 2024
Filed: June 27, 2024
[Unpublished]
____________
Before COLLOTON, Chief Judge, ARNOLD and GRUENDER, Circuit Judges.
____________
PER CURIAM.
After Nicholas Lee Scott pleaded guilty to possessing methamphetamine with
the intent to distribute it, see 21 U.S.C. § 841(a)(1), (b)(1)(B), the district court1
1The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.

-- 1 of 4 --

sentenced him to 127 months in prison. He maintains on appeal that the district court
miscalculated his recommended sentencing range and imposed a substantively
unreasonable sentence. We affirm.
Police officers were executing a search warrant at a residence when they
discovered Scott along with methamphetamine, fentanyl, cocaine, psilocin
mushrooms, ecstasy, THC liquid, THC wax, marijuana, and drug paraphernalia. He
was indicted on one count of possessing methamphetamine with the intent to
distribute it, and he pleaded guilty to the charge a short time later. In calculating
Scott's sentencing range under the Sentencing Guidelines, a presentence investigation
report prepared by the U.S. Probation Office recommended a two-level enhancement
under USSG § 2D1.1(b)(1) because Scott had possessed a dangerous weapon. It also
initially recommended that Scott receive credit under USSG § 3E1.1 since he had
accepted responsibility for his offense, but it later withdrew that recommendation
because it had received allegations that Scott had assaulted a fellow inmate while in
jail. Scott objected to the dangerous-weapon enhancement and also argued that he
should receive credit for acceptance of responsibility. The court at sentencing rejected
both of Scott's contentions, and his resulting Guidelines range was 120–150 months'
imprisonment. Had the court sided with Scott on both of his contentions, the range
would have been 77–96 months.
Scott maintains that the court should not have applied the dangerous-weapon
enhancement and should have found that he had accepted responsibility for his
offense. We need not resolve these contentions. "When the district court explicitly
states that it would have imposed the same sentence of imprisonment regardless of
the underlying Sentencing Guideline range, any error on the part of the district court
is harmless." United States v. Peterson, 887 F.3d 343, 349 (8th Cir. 2018). After
announcing the 127-month sentence, the court here explained that it thought it had
resolved both issues correctly but said that "[e]ven if I'm wrong . . . I think this
sentence is the appropriate sentence, notwithstanding the objections." It went on to
-2-

-- 2 of 4 --

say that, had a lower sentencing range applied, it "would have just gone beyond the
guideline range" by varying upward to 127 months "[b]ecause I think it is appropriate
in light of [Scott's] prior conduct." Any error that the court committed was therefore
harmless.
Scott asserts that an upward variance in the circumstances is not substantively
reasonable. We "review[] the substantive reasonableness of a sentence under a
deferential abuse-of-discretion standard," and it is "the unusual case when we reverse
a district court sentence—whether within, above, or below the applicable Guidelines
range—as substantively unreasonable." See United States v. Evans, 63 F.4th 1157,
1160 (8th Cir. 2023).
The district court recited some aggravating circumstances to justify Scott's
sentence. It explained that officers found him with a "plethora of drugs" and that
Scott was placing dangerous substances in the "stream of commerce," harming not
only himself and his own family but other families as well. And it pointed out that
Scott has a history of engaging in risky behavior and has received lenient sentences
in the past.
Scott notes that the Guidelines already account for these circumstances. First
of all, matters used to calculate the Guidelines range can also be used to support an
upward variance. See United States v. Manuel, 73 F.4th 989, 993 (8th Cir. 2023). And
we aren't convinced in any event that the Guidelines already accounted for all the
reasons that the court gave in fixing its sentence. For example, when the court
mentioned that Scott had been caught with a "plethora of drugs," it does not appear
that it was referring to the amount of methamphetamine he was charged with but to
the "large variety of drugs that were seized," as the government put it at sentencing
in requesting a 150-month sentence. The Guidelines calculation accounted for only
the methamphetamine that officers seized and not for the other drugs found, such as
cocaine, fentanyl, ecstasy, and marijuana. The Guidelines also did not take into
-3-

-- 3 of 4 --

account that the prior lenient sentences Scott has received have not deterred him from
committing additional crimes. We hold that the court acted within its discretion in
imposing a 127-month sentence.
Affirmed.
______________________________
-4-

-- 4 of 4 --