United States Court of Appeals For the Eighth Circuit ___________________________

No. 19-3114 ___________________________

United States of America

Plaintiff - Appellee

v.

Kevin Ray Smith

Defendant - Appellant ____________

Appeal from United States District Court for the Southern District of Iowa - Des Moines ____________

Submitted: April 16, 2020 Filed: July 29, 2020 [Unpublished] ____________

Before KELLY, WOLLMAN, and STRAS, Circuit Judges. ____________

PER CURIAM.

Kevin Ray Smith pleaded guilty to conspiring to distribute a mixture or substance containing methamphetamine. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 846. Based on two prior drug convictions, the district court1

1 The Honorable John A. Jarvey, Chief Judge, United States District Court for the Southern District of Iowa. concluded that he was a career offender. See U.S.S.G. § 4B1.1. On appeal, Smith claims that considering his prior convictions violated the Double Jeopardy Clause and gave rise to a substantively unreasonable sentence. We affirm.

We make short work of Smith’s double-jeopardy argument. As we have long held, giving “habitual offenders” a longer sentence based on their past crimes “do[es] not subject [them] to a second conviction or punishment for [their] prior offenses.” United States v. Thomas, 895 F.2d 1198, 1201 (8th Cir. 1990); accord Witte v. United States, 515 U.S. 389, 400 (1995); see U.S. Const. amend. V, cl. 2. Rather, it is a permissible recidivism-based “aggravating factor” for their current offense. Thomas, 895 F.2d at 1201; see Witte, 515 U.S. at 400 (describing “the latest crime” as “an aggravated offense because a repetitive one” (citation omitted)).

It was also reasonable for the district court to rely on Smith’s career-offender status when it gave him a below-Guidelines-range sentence of 160 months in prison. See United States v. Scott, 818 F.3d 424, 435–36 (8th Cir. 2016); see also United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (reviewing a substantive-reasonableness challenge for an abuse of discretion). Even if he believes that it was “unfair[]” to rely on his prior convictions, there was no error in doing so. See United States v. Barron, 557 F.3d 866, 870–71 (8th Cir. 2009). Nor was it an abuse of discretion for the court, after granting a substantial departure from the recommended range of 262 to 327 months in prison, see U.S.S.G. § 5K1.1, to decline to vary downward even further. Cf. United States v. Zauner, 688 F.3d 426, 429 (8th Cir. 2012) (stating that a district court rarely abuses its discretion when it varies downward, but not as far as the defendant would like).

We accordingly affirm the judgment of the district court. ______________________________

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