United States of America v. Jordan Thomas Hopper

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-3703
___________________________
United States of America
Plaintiff - Appellee
v.
Jordan Thomas Hopper
Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Eastern
____________
Submitted: September 27, 2024
Filed: November 4, 2024
[Unpublished]
____________
Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
____________
PER CURIAM.
Jordan Hopper pleaded guilty to three federal drug offenses, see 21 U.S.C. §§
841(a)(1), 841(b)(1)(B), 841(b)(1)(C), 846, and the district court1 sentenced him to
420 months’ imprisonment, which was within the advisory sentencing guidelines
1 The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

-- 1 of 4 --

-2-
range of 360 months’ to life imprisonment. On appeal Hopper raises two procedural
errors: he claims the district court erred first by imposing a three-level aggravating
role enhancement and second by improperly calculating his criminal history score.
Separately, Hopper argues that his 420-month sentence is substantively
unreasonable. For the reasons discussed below, we affirm.
We first consider whether the district court committed a significant procedural
error either in applying a role enhancement or in calculating his criminal history
score. In reviewing a sentence for procedural error, we review the district court’s
factual findings for clear error and its interpretation and application of the sentencing
guidelines de novo. United States v. Smith, 983 F.3d 1006, 1008 (8th Cir. 2020).
Hopper argues the district court committed a significant procedural error by
imposing a three-level aggravating role enhancement under U.S.S.G. § 3B1.1(b).
Section 3B1.1(b) provides that a three-level enhancement is appropriate when “the
defendant was a manager or supervisor . . . and the criminal activity involved five or
more participants…” A “participant” is “a person who is criminally responsible for
the commission of the offense, but need not have been convicted.” See § 3B1.1 cmt.
n. 1. Hopper does not dispute that the criminal activity involved five or more
participants. Instead he contends that the district court erroneously found that his
girlfriend, J.W., qualified as a participant in the conspiracy. In his view, she was
“unwittingly” involved in the conspiracy and “did not know her actions were in
furtherance of the conspiracy.” And if J.W. was not a participant, then Hopper had
no one to “manage,” and the role enhancement would not apply.
The district court did not clearly err when it determined that J.W. was a witting
participant in Hopper’s conspiracy. See United States v. Starks, 815 F.3d 438, 441-
442 (8th Cir. 2016) (reviewing for clear error the district court's determination that
an individual is a participant). J.W. admitted she saw Hopper with “fake Percocet”
pills and knew he “would sometimes share [pills] with other people and would also
sell pills to others.” J.W.’s admissions are corroborated by text messages indicating
she helped Hopper deal drugs. She also conceded that she picked up money at

-- 2 of 4 --

-3-
Hopper’s direction. In light of this evidence, the district court did not clearly err
when it determined that J.W. qualifies as a participant. Accordingly, we discern no
error in the district court’s imposition of the three-level aggravating role
enhancement.
Hopper next contends the district court committed a significant procedural
error when it calculated his criminal history score. The district court assessed two
criminal history points to Hopper’s criminal history score for a previous state
conviction carrying a 120-day sentence. See § U.S.S.G. § 4A1.1(b) (specifying that
two points are added “for each prior sentence of imprisonment of at least sixty
days.”) Those two points increased his criminal history category from V to VI.
Hopper argues that he should not have received the points because that prior 120-
day sentence was terminated after eighty-nine days, which he believes “vacated” the
sentence. But “criminal history points are based on the sentence pronounced, not
the length of time actually served.” § 4A1.2, cmt. n. 2. See also United States v.
Gaye, 902 F.3d 780, 793 (8th Cir. 2018) (affirming the assessment of two criminal
history points because a defendant was sentenced to 120 days’ imprisonment even
though he only served fifty days). The sentence pronounced for Hopper’s prior
conviction was 120 days, so the district court properly assessed two points to his
criminal history score. See U.S.S.G. § 4A1.1(b). Therefore, the district court did
not err.
Finally, we evaluate whether Hopper’s sentence is substantively
unreasonable. We review the substantive reasonableness of a sentence under a
deferential abuse-of-discretion standard, Gall v. United States, 552 U.S. 38, 51
(2007), and we presume that a sentence within the advisory guideline range is
reasonable. United States v. Hemsher, 893 F.3d 525, 535 (8th Cir. 2018). A district
court abuses its discretion when it (1) fails to consider a relevant factor that should
have received significant weight, (2) gives significant weight to an improper or
irrelevant factor, or (3) commits a clear error of judgment in weighing the
appropriate factors. United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005).
Hopper argues that his sentence is substantively unreasonable because the district

-- 3 of 4 --

-4-
court failed to accord proper weight under 18 U.S.C. § 3553(a)(6) to the need to
avoid sentencing disparities among similarly situated defendants. He contends his
420-month sentence is “excessive compared to other individuals convicted of similar
crimes,” pointing to a national average sentence of 175 months for offenders within
his sentencing zone.
We conclude that the district court did not abuse its discretion. Hopper’s
sentence is within the advisory guidelines range of 360 months to life and is afforded
a presumption of reasonableness. See Hemsher, 893 F.3d at 535. At sentencing, the
court properly and carefully considered the § 3553(a) factors, specifically citing
mitigating factors such as Hopper’s difficult childhood, drug addiction, and mental
health diagnoses. It weighed those against specific aggravating circumstances,
noting that Hopper’s conduct led to at least two overdose deaths and two overdoses
resulting in serious bodily injury. It also observed that the distribution conspiracy
involved a “remarkable” volume of fentanyl and spanned several months. And the
court weighed heavily Hopper’s “disregard for the safety of others” by continuing
to distribute even after multiple overdoses occurred. Hopper’s appeal to national
average sentence lengths falls short. The number he cites is an average, meaning
some defendants receive sentences lower than 175 months, and other defendants,
like Hopper, receive higher sentences. Hopper has failed to “show more than the
fact that the district court disagreed with his view of what weight ought to be
accorded certain sentencing factors.” United States v. Townsend, 617 F.3d 991, 995
(8th Cir. 2010) (per curiam). Accordingly, we conclude that Hopper has not rebutted
the presumption of reasonableness accorded his within-guidelines sentence. The
district court did not abuse its discretion.
We affirm.
______________________________

-- 4 of 4 --