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Submitted: April 15, 2022 Filed: May 13, 2022 [Unpublished] ____________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 court 1 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. 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. ______________________________

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