United States v. Wesley N. Hawkins ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-1128
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Wesley Norvette Hawkins, *
* [UNPUBLISHED]
Appellant. *
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Submitted: August 22, 1997
Filed: September 2, 1997
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Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.
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PER CURIAM.
In this appeal following remand, Wesley Norvette Hawkins challenges the new
sentence imposed on him by the district court.1 We affirm.
1
The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
The district court previously sentenced Hawkins to 262 months imprisonment
for possessing cocaine and crack cocaine with intent to distribute, in violation of 21
U.S.C. § 841(a)(1); a concurrent 120-month prison term for being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1); a consecutive 60-month prison term
for using a firearm in relation to the charged drug trafficking, in violation of 18 U.S.C.
§ 924(c)(1); and 5 years supervised release. In doing so, the district court denied
Hawkins&s motion under U.S. Sentencing Guidelines Manual § 4A1.3, p.s. (1995) for
a downward departure. We initially affirmed Hawkins&s convictions and sentences, and
also concluded that the denial of his section 4A1.3 motion was unreviewable given the
district court&s awareness of its authority to depart, see United States v. Hawkins, 59
F.3d 723, 726, 731-32 (8th Cir. 1995), but the Supreme Court later vacated our
judgment and remanded the case to us for further consideration in light of Bailey v.
United States, 116 S. Ct. 501 (1995), see Hawkins v. United States, 116 S. Ct. 1257
(1996). We thus remanded the case to the district court for further consideration of the
gun count, and affirmed the convictions and sentences on the remaining counts. See
United States v. Hawkins, No. 94-3436 (8th Cir. July 29, 1996) (order).
On remand to the district court, Hawkins again moved for a downward departure
under section 4A1.3. The district court vacated the gun conviction and 60-month
sentence, but denied Hawkins's section 4A1.3 motion, declining to reconsider its prior
ruling. On appeal, Hawkins argues the district court erroneously believed that our prior
decision in his direct criminal appeal limited the district court&s discretion to reconsider
the issue of a downward departure. Upon careful review of the record, however, we
conclude that the court&s refusal to reconsider amounted to another discretionary
decision not to depart. Therefore, we conclude once again that the court’s decision on
that point is unreviewable. See United States v. Hall, 7 F.3d 1394, 1396 (8th Cir.
1993).
Accordingly, we affirm the judgment of the district court.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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