United States v. Antonio Shaw , 597 F. App'x 398 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-2630
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Antonio Shaw, also known as Lips, also known as A1
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: February 6, 2015
Filed: March 23, 2015
[Unpublished]
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Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
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PER CURIAM.
In 2012, a jury found Antonio Shaw guilty of conspiring to distribute cocaine
base and marijuana, and of possessing a firearm in furtherance of a drug-trafficking
offense. On appeal, this court upheld the convictions, but vacated the firearm-
possession sentence based on Alleyne v. United States, 133 S. Ct. 2151 (2013). See
United States v. Shaw, 751 F.3d 918 (8th Cir. 2014).
On remand, the district court1 recognized the correct mandatory minimum
sentence for the firearm-possession offense, then imposed the same sentences as
before: consecutive prison terms of 210 and 168 months. These sentences were
above the calculated advisory range under the United States Sentencing Guidelines.
In this appeal, Shaw’s counsel has moved to withdraw and has filed a brief under
Anders v. California, 386 U.S. 738 (1967), arguing that the drug quantity attributed
to Shaw for purposes of calculating his advisory Guidelines range was not supported
by the evidence and that in choosing a sentence above the Guidelines range, the
district court erred in considering evidence presented at sentencing regarding
uncharged criminal conduct. In a pro se brief, Shaw additionally argues (1) the
district court failed to remedy the Alleyne error; (2) the evidence did not support his
conviction for conspiring to distribute cocaine base; (3) the evidence did not support
certain enhancements included in the calculation of his total offense level under the
Guidelines; and (4) the court erred in calculating his criminal history.
Shaw’s challenges to the sufficiency of the evidence, the enhancements other
than the drug quantity used in calculating his offense level, and his criminal history
are precluded because, in his first appeal, these issues either were not raised or were
decided adversely to him. See United States v. Walterman, 408 F.3d 1084, 1085-86
(8th Cir. 2005) (in appeal following remand, refusing to consider issues not brought
to court’s attention in first appeal; noting defendant does not get second chance to
make argument not supported in first appeal just because he is resentenced); United
States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995) (when appellate court remands
case, “all issues decided by the appellate court become the law of the case” and may
not be relitigated).
1
The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
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We will consider Shaw’s remaining counseled and pro se challenges, as our
prior opinion expressly reserved any review of the procedural and substantive
reasonableness of Shaw’s sentences. See 751 F.3d at 923 n.1; see also United States
v. Hatter, 532 U.S. 557, 566 (2001) (law-of-case doctrine presumes hearing on
merits). First, to the extent that Shaw initially challenged and now continues to
challenge the drug-quantity calculation, we find no clear error. See United States v.
Walker, 688 F.3d 416, 421-22 (8th Cir. 2012) (sentencing court may determine drug
quantity based on testimony of co-conspirator alone); United States v. Payton, 636
F.3d 1027, 1046 (8th Cir. 2011) (standard of review); United States v. Weiland, 284
F.3d 878, 882-83 (8th Cir. 2002) (discussing factors relevant when determining if
prior drug-possession conviction properly was counted as relevant conduct to
conspiracy offense for purposes of determining base-offense level). Second, we
conclude that the district court did not err in considering evidence of uncharged
criminal conduct that was presented at the sentencing hearing. See United States v.
Loaiza-Sanchez, 622 F.3d 939, 942 (8th Cir. 2010) (prior criminal conduct, whether
or not related to offense of conviction, is part of history and characteristics of
defendant that court shall consider in imposing appropriate sentence); United States
v. Jenners, 537 F.3d 832, 835-36 (8th Cir. 2008) (court may consider uncharged
criminal conduct). Third, we find no merit to Shaw’s argument that the court failed
to remedy its Alleyne sentencing error on remand. The court recognized the correct
statutory mandatory minimum sentence, then imposed a sentence based on its
consideration of the factors in 18 U.S.C. § 3553(a). Finally, upon independently
reviewing the record in accordance with Penson v. Ohio, 488 U.S. 75, 80 (1988), we
conclude that the sentences are not unreasonable, see United States v. Feemster, 572
F.3d 455, 461 (8th Cir. 2009) (en banc) (abuse-of-discretion review of sentencing
decision); United States v. Magnum, 625 F.3d 466, 470 (8th Cir. 2010) (where district
court sufficiently explains sentencing decision, appellate court gives due deference
to court’s decision that § 3553(a) factors, on whole, justify extent of variance).
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Accordingly, we grant counsel’s motion to withdraw, and we affirm the
judgment of the district court.
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