United States v. Sid L. Martin ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-3374
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Sid L. Martin, * [UNPUBLISHED]
*
Appellant. *
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Submitted: June 3, 1998
Filed: June 9, 1998
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Before BOWMAN, Chief Judge, WOLLMAN, and MORRIS SHEPPARD
ARNOLD, Circuit Judges.
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PER CURIAM.
In 1993, Martin was convicted of the unregistered manufacture and possession
of destructive devices (Molotov cocktails), in violation of 26 U.S.C. §§ 5861(d), (f) and
5871. Martin&s Guidelines sentencing range for each count was 135-168 months; the
district court1 sentenced Martin to a total of 151 months’ imprisonment, composed of
a 76-month sentence on the manufacture count and a consecutive 75-month sentence
1
The Honorable Elmo B. Hunter, United States District Judge for the Western
District of Missouri.
on the possession count. Subsequently, Martin&s 28 U.S.C. § 2255 motion was
granted, because each offense carried a statutory maximum sentence of 10 years. See
26 U.S.C. § 5871. The district court2 resentenced Martin to concurrent 120-month
sentences of imprisonment on each count.
Martin argues that the district court improperly “restructured” his sentence by
increasing the number of months on each count. We conclude that Martin&s argument
lacks merit, as the resentencing court could not impose a lower sentence absent a valid
basis for departure. See U.S.S.G. § 5G1.1(a) (where statutory maximum sentence is
less than minimum of Guidelines range, statutory maximum sentence shall be
Guidelines sentence); 18 U.S.C. § 3553(b) (court shall impose sentence within
Guidelines range unless court finds there exists aggravating or mitigating circumstances
not addressed by Guidelines). We note that the court properly imposed the 120-month
sentences concurrently. See U.S.S.G. § 5G1.2(c); see also United States v. Buchanan,
830 F.2d 146, 147-49 (10th Cir. 1987).
Martin also argues that his sentence violates the Constitution&s Double Jeopardy
Clause, but as he did not raise this argument before the district court, we decline to
address it. See United States v. Marsanico, 61 F.3d 666, 668 (8th Cir. 1995).
Accordingly, the judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
2
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
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