United States of America v. Michael E. Bell

United States Court of Appeals
For the Eighth Circuit
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No. 23-1231
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Michael E. Bell,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: October 16, 2023
Filed: January 24, 2024
[Unpublished]
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Before SMITH, Chief Judge, LOKEN and COLLOTON, Circuit Judges.
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PER CURIAM.
Michael Bell pleaded guilty to three counts of possession with intent to
distribute heroin and fentanyl. See 21 U.S.C. § 841(a)(1), (b)(1)(C). The district
court* sentenced him to 72 months’ imprisonment. On appeal, Bell argues that the
*The Honorable Stephen R. Clark, Chief Judge, United States District Court for
the Eastern District of Missouri.

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district court committed procedural error by relying on clearly erroneous facts and
also imposed an unreasonable sentence. We affirm.
Between September 2019 and January 2020, law enforcement officers thrice
found Bell in possession of quantities of heroin and fentanyl that were suitable for
distribution. Bell admitted that he intended to distribute the drugs. Each time, officers
also discovered at least one firearm in Bell’s possession. They seized a total of four
handguns, one of which had a defaced serial number.
A grand jury charged Bell with three counts of possession with intent to
distribute heroin and fentanyl, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).
The indictment also alleged three counts of possession of a firearm in furtherance of
drug trafficking. See 18 U.S.C. § 924(c). The firearm charges each carried a statutory
minimum sentence of five years’ imprisonment. Id. § 924(c)(1)(A)(i).
The parties reached a plea agreement. Bell pleaded guilty to the drug
trafficking offenses, and the government dismissed the counts charging firearms
offenses under § 924(c). The parties jointly recommended a 36-month term of
imprisonment, whether or not that sentence was within the advisory guideline range.
At sentencing, the district court determined an advisory sentencing guideline
range of 21 to 27 months’ imprisonment. The offense level was determined based on
the applicable drug quantity and a two-level increase for possession of a firearm. See
USSG § 2D1.1(b)(1). The parties jointly requested a variance from the guideline
range to their agreed-upon sentence of 36 months’ imprisonment.
The district court, however, concluded that the proposed variance was
insufficient to comply with the purposes of sentencing under 18 U.S.C. § 3553(a).
The court first observed that Bell admitted possessing firearms in close proximity to
drugs and drug paraphernalia. The court calculated that if Bell had been convicted of
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the firearms charges that were dismissed under the plea agreement, then his advisory
guideline range would have been 195 to 201 months’ imprisonment.
The court then cited Bell’s “multiple instances of felonious conduct, all within
a four- to five-month period, all trafficking in lethal drugs while possessing four
different firearms.” Based on that course of conduct, the court concluded that “Bell
went all in on dealing drugs and had no problem attaining firearm after firearm after
being arrested on different occasions in this case.” The court decided that the
recommendation of the parties failed to account for “the seriousness of the defendant’s
repeated possession with intent to distribute lethal drugs while possessing firearms on
three separate occasions.” The court ultimately sentenced Bell to 72 months’
imprisonment.
In a written statement of reasons, the court cited “significant drug dealing” as
an element of Bell’s history and characteristics. The court reiterated that the variance
was based on Bell’s possession of four firearms (including one with a defaced serial
number), possession of multiple lethal drugs on three separate occasions, and a high
likelihood of recidivism.
Bell first argues that the court committed procedural error by relying on a drug
quantity that is unsupported by the record. He contends that the district court’s
statements—that Bell went “all in” on drug dealing and engaged in “significant drug
dealing”—imply a larger drug quantity than the record supports. Bell relies on United
States v. Stokes, 750 F.3d 767 (8th Cir. 2014), where a district court erroneously stated
that the defendant made a living on drug dealing and that his history of dealing
extended back a decade. Id. at 771.
The district court here did not attribute an erroneous drug quantity to Bell’s
activity. The presentence report recommended that Bell was responsible for 0.971
gram of cocaine base, 0.344 gram of methamphetamine, 6.796 grams of heroin, and
3.839 grams of fentanyl. The court adopted these proposed findings without change.
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Viewed in context, the court’s comments reflect its view that Bell’s three drug
trafficking offenses within a short period of time, together with the possession of
firearms during those offenses, constituted significant drug dealing. The record does
not show that the court relied on offense conduct that is unsupported by the evidence.
Bell also maintains that his sentence was unreasonable. We review the
reasonableness of the district court’s chosen sentence under a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). First, Bell
contends that the court improperly placed significant weight on his possession of
firearms, because the court already had applied a two-level increase for that conduct
under the guidelines. This argument has no merit: “[F]actors that have already been
taken into account in calculating the advisory Guidelines range can nevertheless form
the basis of a variance.” United States v. Thorne, 896 F.3d 861, 865 (8th Cir. 2018)
(internal quotation omitted).
The district court permissibly relied on Bell’s aggravating conduct involving
firearms as a basis to vary upward from the guideline range under § 3553(a). See id.;
United States v. Obi, 25 F.4th 574, 581-82 (8th Cir. 2022). The court reasonably
concluded that a two-level increase under the guidelines did not adequately account
for Bell’s possession of multiple handguns, including one with a defaced serial
number, in connection with several different drug trafficking offenses. Even with the
variance, Bell still received a shorter term of imprisonment than the law would have
required if he were convicted of the firearms offenses that were dismissed after
negotiation. See 18 U.S.C. § 924(c)(1)(A)(i), (D)(ii).
Second, Bell contends that the district court abused its discretion by considering
his drug addiction as an aggravating factor. Drug addiction is a factor that may be
aggravating or mitigating, depending on the circumstances. Here, the court
permissibly treated Bell’s addiction as an aggravating factor after finding that the
addiction contributed to Bell’s drug trafficking and possession of dangerous weapons.
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See United States v. Henry, 770 F. App’x 309, 311 (8th Cir. 2019); cf. United States
v. Smith, 656 F.3d 821, 826 (8th Cir. 2011). There was no abuse of discretion.
The judgment of the district court is affirmed.
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