United States v. Dexter Ross

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2709
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Dexter Ross, *
*
Appellant. *
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Submitted: December 13, 2010
Filed: June 9, 2011
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Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.
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WOLLMAN, Circuit Judge.
A jury found Dexter Ross guilty of drug and firearm charges. The district
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court —resentencing Ross after two prior remands from our court—sentenced him to
72 months’ imprisonment. Ross appeals, arguing that his sentence is substantively
unreasonable because the district court failed to defer to the intent of the original
sentencing judge. We affirm.
1
The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas.
I.
This case is now before us for the third time. Although we have already
affirmed Dexter Ross’s drug and firearm convictions, see United States v. Ross, 487
F.3d 1120 (8th Cir. 2007) [Ross I], we have twice vacated his sentence, see id.; United
States v. Ross, 323 F. App’x 483 (8th Cir. 2009) [Ross II]. At Ross’s first sentencing,
the district court computed a guidelines range of 110 to 137 months’ imprisonment
and imposed a sentence of 137 months, but decided to suspend 77 of those months
because it felt that Ross had “turned his life around” and “seen the light.” On appeal,
we vacated the sentence on the ground that the district judge did not have the authority
to impose a suspended sentence and “remand[ed] for resentencing consistent with
[our] opinion.” Ross I, 487 F.3d at 1124-25.
On remand, Ross was sentenced by a different district judge2 to 96 months’
imprisonment. Only a few days later, the Supreme Court decided Gall v. United
States, 552 U.S. 38 (2007), and, on that basis, Ross again appealed his sentence.
Because Gall permitted more sentencing discretion than our prior cases had held was
available, we vacated Ross’s second sentence and again remanded “for resentencing
consistent with [our] opinion,” stressing, however, that we were “express[ing] no
opinion as to the reasonableness or appropriateness of the original or revised sentences
in this case.” Ross II, 323 F. App’x at 483-84.
On this second remand, the district court sentenced Ross to 72 months’
imprisonment, rejecting Ross’s request for a “reimposition of the original sentence in
a technically correct manner,” i.e., “a term of imprisonment of 60 months followed by
a lengthy term of supervised release.” This appeal followed.
2
The original sentencing judge died while Ross’s first sentence was on appeal.
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II.
Ross argues that “the district court erred in failing to give adequate
consideration to the original sentencing court’s reasoning and intent when it
determined that a sentence involving sixty months of confinement and seventy-seven
months of supervision was appropriate.” Appellant’s Br. at 11. In his view, the
district judge on remand should have “give[n] substantial deference to the original
court’s sentence.” Id. Not to do so, he says, was either a “fail[ure] to consider a
relevant factor that should have received significant weight” or “a clear error of
judgment” in weighing the relevant factors, both of which constitute abuses of a
district court’s discretion, see United States v. Feemster, 572 F.3d 455, 461 (8th Cir.
2009), that render the sentence substantively unreasonable, see Gall, 552 U.S. at 56-
60.
We note at the outset that the district court on resentencing did indeed consider
the intent of the original sentencing judge. See Resentencing Tr. at 15:12-21, July 10,
2009 (“But in weighing all of those factors, looking back at what Judge Howard
apparently intended after hearing all of the evidence, looking back at the sentencing
last time, and understanding that I have to take into account the seriousness of the
crime as well as these other things . . . I’ve concluded that Mr. Ross should be
sentenced to a term of imprisonment of 72 months followed by four years of
supervised release.”). Therefore, all that remains of Ross’s claim is an argument that
the district court gave too little weight to the original sentence.
The Supreme Court recently addressed a similar question in another case from
our court. See Pepper v. United States, 131 S. Ct. 1229 (2011). In Pepper, the
original sentencing judge granted Pepper a 40 percent downward departure for his
substantial assistance. We vacated that sentence on grounds unrelated to the
substantial assistance departure and remanded with instructions that a different district
judge be assigned for the purpose of resentencing. That judge granted only a 20
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percent downward departure. Pepper argued that the resentencing judge was bound
by the law of the case doctrine to apply the same 40 percent departure granted by the
original sentencing judge, but the Supreme Court disagreed.
Noting that our mandates were “general remands for resentencing, which did
not place any limitations on the discretion of the newly assigned district court judge
in resentencing,” id. at 1239, the Supreme Court concluded that even if the 40 percent
departure was at one point law of the case, our general remand “effectively wiped the
slate clean,” id. at 1251. This was so even though we had vacated Pepper’s sentence
“on grounds unrelated to the substantial assistance departure.” Id.Pepper does not answer the precise question presented by this case, inasmuch
as Ross does not argue that the district court was bound by the original sentence. But
it does teach that the effect of a general remand for resentencing “effectively wipe[s]
the slate clean.” And we think that principle applies equally here.
Both of our prior remands in this case were “general remands for resentencing
which did not place any limitations on the discretion of the newly assigned district
court judge in resentencing.” Id. at 1239. Indeed, our most recent opinion explicitly
“express[ed] no opinion as to the reasonableness or appropriateness of the original or
revised sentences in this case.” Ross II, 323 F. App’x at 484. That is, we have never
held that Ross’s original sentence was substantively reasonable, much less that it was
the only sentence that would be substantively reasonable. Accord Pepper, 131 S. Ct.
at 1250 n.18 (“In any event, . . . neither Pepper II nor Pepper III held that a 40 percent
downward departure was the only reasonable departure that a sentencing court could
grant for Pepper’s substantial assistance.”). We therefore see no reason, and Ross
provides none, that the district court should be required to give deference to that
judgment. To be sure, the district judge on resentencing must consider the factors
relevant to sentencing, including both the “history and characteristics of the
defendant” as well as the goals of federal criminal sentencing. See 18 U.S.C.
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§ 3553(a). And it must weigh those factors in a manner that is “reasonable.” Gall v.
United States, 552 U.S. 38, 46 (2007). Doing so may yield the same result reached
by the original sentencing judge, or it may not. But that is an exercise in sentencing
discretion, which we review deferentially. See Feemster, 572 F.3d at 461-64. Here,
in fashioning Ross’s sentence, the district court considered Ross’s particular
circumstances, including his criminal history, the likelihood that he will commit future
crimes, the seriousness of his offense, and his relative culpability as compared with
others who were involved. In light of the district court’s explanation of the effect of
those factors, we cannot say that it abused its discretion in imposing a sentence of 72
months’ imprisonment.
III.
The sentence is affirmed.
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