United States of America v. David M. Foston, also known as Max, also known as Prez

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-2435
___________________________
United States of America
Plaintiff - Appellee
v.
David M. Foston, also known as Max, also known as Prez
Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: April 15, 2022
Filed: May 13, 2022
[Unpublished]
____________
Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges.
____________
PER CURIAM.
David M. Foston appeals his sentence for conspiring to distribute cocaine in
violation of 21 U.S.C. § 846, arguing that the district court1 erred in classifying him
as a career offender. At sentencing, the district court stated that it “would still
1 The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.

-- 1 of 2 --

-2-
impose [the same] sentence” even if Foston did not qualify as a career offender.
Thus, even assuming arguendo that the district court erred in classifying Foston as
a career offender, the error was harmless and does not provide a basis to remand for
resentencing. See United States v. Davis, 583 F.3d 1081, 1095 (8th Cir. 2009)
(“Because the district court explicitly stated it would have imposed a sentence of
293 months imprisonment regardless of whether [the defendant] was a career
offender, any error on the part of the district court is harmless, and we affirm.”).
Accordingly, we affirm Foston’s sentence.
______________________________

-- 2 of 2 --