United States of America v. Henry Wilke Eilders

United States Court of Appeals
For the Eighth Circuit
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No. 21-2352
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Henry Wilke Eilders
lllllllllllllllllllllDefendant - 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 11, 2022
Filed: May 19, 2022
[Unpublished]
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Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
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PER CURIAM.
Henry Wilke Eilders pleaded guilty to conspiracy to distribute a controlled
substance, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and
possession with intent to distribute a controlled substance, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A). The conspiracy occurred from summer 2018 to

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March 10, 2020, primarily in Linn County and Des Moines County, Iowa, and the
possession with intent to distribute occurred on March 10, 2020, in Linn County.
The presentence report scored one criminal history point for Eilders’s state
sentence relating to his September 2016 possession of methamphetamine in Tama
County, Iowa, and one point for Eilders’s state sentence relating to his September
2017 possession of methamphetamine in Black Hawk County, Iowa. Although
Eilders did not object to the assessment of these criminal history points, the district
court1 nonetheless found that the state offenses were separate from the federal offense
conduct and thus were properly scored under the U.S. Sentencing Guidelines. The
district court also added two criminal history points because Eilders committed the
federal offense while under criminal justice sentences for the Iowa offenses. Eilders’s
Guidelines sentencing range was 236 to 294 months’ imprisonment. The district
court varied downward and imposed a 230-month sentence.
We conclude that the district court did not plainly err in assessing the two
criminal history points for the sentences related to Eilders’s 2016 and 2017
methamphetamine possession offenses. See United States v. Olano, 507 U.S. 725,
732 (1993) (standard of review); United States v. Ault, 598 F.3d 1039, 1041 (8th Cir.
2010) (“If the conduct is part of the instant offense, it is relevant conduct and is
considered in the calculation of the defendant’s offense level, not the criminal history
category.”); U.S.S.G. § 4A1.1 (assessing points for certain “prior sentences”);
U.S.S.G. § 4A1.2 (defining “prior sentence” as “any sentence previously imposed . . .
for conduct not part of the instant offense”). Eilders’s state offenses were severable
and distinct from his federal offenses because they occurred well before the charged
conspiracy, they involved only small quantities of methamphetamine, they did not
involve distribution, they were not used to prove the federal offenses, they occurred
1The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
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in different Iowa counties, and there were no common victims. See United States v.
Campbell-Martin, 17 F.4th 807, 818–19 (8th Cir. 2021) (district court did not clearly
err in determining defendant’s prior offense was not relevant conduct because there
was a four-month gap between the offenses, there was no common scheme or
purpose, the prior offense involved different controlled substance, the offenses
occurred in two different Iowa counties, and there were no common victims), petition
for cert. filed, 90 U.S.L.W. 3326 (U.S. Apr. 11, 2022) (No. 21-1344). The district
court also properly assessed Eilders two criminal history points for committing the
federal offense while under the Iowa sentences. See U.S.S.G. § 4A1.1(d).
The judgment is affirmed.
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