United States v. Donald Leonard Sturgis , 366 F. App'x 713 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1574
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Donald Leonard Sturgis, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 16, 2010
Filed: February 23, 2010
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Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Donald Leonard Sturgis challenges the sentence imposed by the district court1
following two prior remands by this court for resentencing. We affirm.
After a jury found him guilty of drug charges, Sturgis was sentenced in October
2004 to 360 months in prison. We affirmed the conviction, but remanded for
resentencing based on advisory Guidelines under United States v. Booker, 543 U.S.
220 (2005). At his October 2006 resentencing, Sturgis was again sentenced to 360
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
months in prison. On appeal, we found that the district court had adequately
considered the 18 U.S.C. § 3553(a) factors and adequately explained its reasons for
imposing the sentence and that the sentence it imposed was reasonable. We found,
however, that it was unclear whether the district court had declined to use its
discretion to consider the crack/powder cocaine sentencing disparity because of then-
current Eighth Circuit precedent that did not authorize such consideration; thus, we
remanded to the district court to reconsider the sentence in light of Kimbrough v.
United States, 552 U.S. 85 (2007).
At his February 2009 resentencing, the district court sentenced Sturgis to 336
months in prison, finding that it was appropriate to sentence him below the advisory
Guidelines range--which was based on his career-offender status--because of the
crack/powder cocaine disparity. Sturgis argues on appeal that the district court
applied an improper presumption of reasonableness to the career-offender Guideline,
and to the Guidelines in general. Assuming the issue is properly before us, we see no
indication that the district court failed to understand its authority to vary from the
career-offender Guideline, or the Guidelines in general. See United States v. Gray,
577 F.3d 947, 950 (8th Cir. 2009) (“the district court gave no indication that it failed
to understand its authority to vary from the career-offender guideline” on the basis of
“policy considerations, including disagreements with the guidelines”). The court
stated at this resentencing that Sturgis had “earned [career-offender status] fair and
square,” and we found in the prior appeal that the district court had properly
considered the section 3553(a) factors.
Sturgis also argues that the district court did not consider his rehabilitation
efforts since his earlier sentencings. This court has held, however, that evidence of
post-sentence rehabilitation is not permitted at resentencing. See United States v.
Pepper, 570 F.3d 958, 965 (8th Cir. 2009), petition for cert. filed, (U.S. Sept. 29,
2009) (No. 09-6822). We have carefully considered the remaining arguments raised
in Sturgis’s four pro se briefs and in the brief filed by Sturgis’s counsel, and we find
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that they are not properly before us, as they are outside the scope of our limited
remand. See United States v. Kendall, 475 F.3d 961, 964 (8th Cir. 2007) (scope of
remand must be determined by reference to analysis in opinion; on remand for
resentencing, all issues decided by appellate court become law of the case); United
States v. Walterman, 408 F.3d 1084, 1085 (8th Cir. 2005) (where remand is limited
to resolution of specific issues, any issues outside scope of remand will generally not
be considered in subsequent appeal).
Accordingly, Sturgis is granted leave to file the additional pro se briefs he has
submitted, the judgment is affirmed, and Sturgis’s pending motion is denied as moot.
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