Craig Thorstenson v. Gale Norton

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3106
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United States of America, *
*
Appellee, *
*
v. *
*
Jeffrey Victor Hershberger, *
*
Appellant. *
------------------------------------ * Appeal from the United States
* District Court for the Southern
United States of America, * District of Iowa.
*
Appellee, * [UNPUBLISHED]
*
v. *
*
Jeffrey Victor Hershberger, *
*
Appellant. *
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Submitted: February 6, 2006
Filed: February 7, 2006
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Before MELLOY, FAGG, and BENTON, Circuit Judges.
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PER CURIAM.

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After Jeffrey Victor Hershberger pleaded guilty to federal charges of bank
robbery and carjacking, the district court sentenced Hershberger to 151 months
imprisonment and 2 years supervised release. Hershberger appeals, and we vacate his
sentence and remand for resentencing.
At sentencing, the district court concluded Hershberger was a career offender
based in part on his prior felony convictions for burglary and escape. See U.S.S.G.
§ 4B1.1(a) (career-offender status requires, among other things, two prior felony
convictions for either crime of violence or controlled substance offense). Hershberger
argues these convictions did not qualify him as a career offender because only one
was countable in his criminal history score. See U.S.S.G. § 4B1.2(c)(2) (for purposes
of career-offender Guideline, “two prior felony convictions” means sentences for at
least two qualifying convictions are counted separately in criminal history).
Specifically, from 1984 to 1993, Hershberger served consecutive prison sentences of
10 years on the burglary conviction and 5years on the escape conviction, and
Hershberger argues only the escape sentence should be counted in his criminal history
score. See U.S.S.G. § 4A1.2(e)(1) (count any earlier sentence of imprisonment
exceeding 13 months if it resulted in defendant being incarcerated during any part of
15-year period before commencement of instant offense). Hershberger alternatively
argues because Iowa law made his consecutive sentences “one continuous term of
imprisonment,” see Iowa Code § 908.8 (2003), he had only one conviction for the
two crimes. The district court rejected both arguments, and Hershberger renews them
here.
We need not reach Hershberger’s arguments. Even if only the escape
conviction is counted as one of the predicate crimes of violence, see United States v.
Nation, 243 F.3d 467, 472 (8th Cir. 2001) (escape qualifies as crime of violence),
Hershberger has another felony crime of violence to serve as the second predicate
crime of violence, namely, a 1996 conviction for operating a vehicle without the
owner’s consent, for which he was sentenced to 2 years imprisonment. See United

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States v. Lindquist, 421 F.3d 751, 754-55 (8th Cir. 2005) (defendant’s earlier Iowa
conviction for operating vehicle without owner’s consent was crime of violence for
purposes of § 4B1.2). Thus, the district court correctly concluded Hershberger was
a career offender.
In addition to concluding Hershberger was a career offender, the district court
calculated Hershberger’s offense level under Chapters Two and Three of the
Guidelines, and in doing so assessed enhancements for threat of death and reckless
endangerment; the court also denied a minor-role adjustment. Hershberger’s resulting
total offense level was the same as his Chapter Four career-offender-based total
offense level. On appeal Hershberger takes issue with the district court’s rulings on
the threat-of-death, reckless-endangerment, and minor-role adjustments. We need not
address these issues because “if the offense level for a career offender . . . is greater
than the offense level otherwise applicable, the [career offender] offense level . . .
shall apply.” See U.S.S.G. § 4B1.1(b); United States v. Horn, 187 F.3d 781, 792 (8th
Cir. 1999) (erroneous 5-level enhancement to offense level harmless where it did not
affect sentence), cert. denied, 529 U.S. 1029 (2000); United States v. Darden, 70 F.3d
1507, 1548 n.17 (8th Cir. 1995) (declining to review argument which would not affect
sentence), cert. denied, 517 U.S. 1149 and 518 U.S. 1026 (1996); see also Williams
v. United States, 503 U.S. 193, 203 (1992) (error with no affect on court’s selection
of sentence imposed is harmless)
This does not conclude our analysis, however, because the district court
erroneously sentenced Hershberger under a mandatory Guidelines regime, see United
States v. Booker, 125 S. Ct. 738, 756-57 (2005) (holding Guidelines to be only
advisory), and Hershberger preserved this issue at sentencing by raising an objection
under Blakely v. Washington, 542 U.S. 296 (2004). Having reviewed for harmless
error, see United States v. Haidley, 400 F.3d 642, 644-45 (8th Cir. 2005), we are left
with "grave doubt" whether the error was harmless: Hershberger was sentenced at the
bottom of the applicable Guidelines range, and there is nothing in the record to

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suggest the district court would have imposed the same sentence under an advisory
system. See id.
Accordingly, we remand for resentencing.
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