United States of America v. Joseph Rauber

United States Court of Appeals
For the Eighth Circuit
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No. 21-2550
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Joseph Rauber,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 13, 2022
Filed: August 15, 2022
[Unpublished]
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Before SMITH, Chief Judge, COLLOTON and SHEPHERD, Circuit Judges.
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PER CURIAM.
Joseph Rauber pleaded guilty to one count of conspiracy to distribute fifty
grams or more of methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846. The statutory
minimum penalty for that offense is 120 months’ imprisonment. Id. § 841(b)(1)(A).
At sentencing, Rauber argued that he met the criteria in 18 U.S.C. § 3553(f), and was
therefore eligible to be sentenced according to the sentencing guidelines without

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regard to the statutory minimum penalty. The district court* disagreed and imposed
sentence of 180 months’ imprisonment.
Rauber appeals and argues that the district court misinterpreted § 3553(f)(1)
in denying his request to be sentenced without regard to the statutory minimum. To
be sentenced “pursuant to the guidelines . . . without regard to any statutory minimum
sentence,” a defendant must meet the conditions in each of the five subsections in 18
U.S.C. § 3553(f). This appeal involves only the first subsection.
Subsection 3553(f) provides that the court may sentence the defendant without
regard to the statutory minimum if the court finds that—
(1) the defendant does not have—
(A) more than 4 criminal history points, excluding any criminal
history points resulting from a 1-point offense, as determined
under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing
guidelines; and
(C) a prior 2-point violent offense, as determined under the
sentencing guidelines.
18 U.S.C. § 3553(f)(1) (emphasis added).
The district court found, and the parties agree, that Rauber meets the conditions
in subsections (A) and (B). But Rauber does not meet the condition in subsection
(C), because he has not previously been convicted of a crime of violence for which
*The Honorable Brian C. Buescher, United States District Judge for the District
of Nebraska.
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he received a sentence of imprisonment between sixty days and thirteen months. See
USSG § 4A1.1(b); 18 U.S.C. §§ 16, 3553(g).
The district court interpreted § 3553(f)(1) to mean that a defendant is ineligible
for a sentence without regard to the statutory minimum if he has the criminal history
specified in any of the three subsections. This court recently agreed. United States
v. Pulsifer, 39 F.4th 1018 (8th Cir. 2022). The court concluded that § 3553(f)(1) uses
“and” as a conjunctive, but in the distributive rather than joint sense of the word. Id.
at 1021-22; see Garner’s Dictionary of Legal Usage 639 (3d ed. 2011). When the
conjunctive “and” is read distributively, § 3553(f)(1) serves as a “checklist,” and the
subsection “is satisfied only when the defendant (A) does not have more than four
criminal history points, (B) does not have a prior three-point offense, and (C) does not
have a prior two-point violent offense.” Pulsifer, 39 F.4th at 1022.
Because Rauber has more than four criminal history points and a prior three-
point offense, he is ineligible for sentencing without regard to the statutory minimum
under § 3553(f). The judgment of the district court is affirmed.
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