United States v. Clarence Stevens , 260 F. App'x 945 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1283
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Clarence Stevens, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 4, 2008
Filed: January 22, 2008
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Before BYE, RILEY, and MELLOY, Circuit Judges.
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PER CURIAM.
Clarence Stevens (Stevens) appeals the 60-month’s imprisonment the district
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court imposed after this court remanded for resentencing. See United States v.
Wintermute, 443 F.3d 993 (8th Cir. 2006). Stevens argues (1) the government should
not have been allowed to present evidence at the resentencing hearing, and (2) his
sentence violates the Sixth Amendment, because the sentencing enhancements he
received were based on facts not found by a jury or admitted by him.
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The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
We conclude (1) the law-of-the-case doctrine required the district court to
follow this court’s mandate to allow the government to present evidence at
resentencing, giving all parties a full resentencing hearing; and (2) Stevens has not
shown that the law of the case should not apply here. See United States v. Huber, 462
F.3d 945, 953 (8th Cir. 2006) (declaring the law of the case requires a trial court to
follow the decision of the appellate court with respect to all issues addressed by the
opinion); United States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995) (explaining the law
of the case prevents relitigation of settled issues and requires courts to adhere to
decisions made in earlier proceedings to ensure uniformity, protect expectations, and
promote judicial economy); United States v. Callaway, 972 F.2d 904, 905 (8th Cir.
1992) (per curiam) (stating the law of the case should be followed unless a party
“introduces substantially different evidence, or [the] prior decision is clearly
erroneous and works manifest injustice”).
We further conclude Stevens’s sentence does not violate the Sixth Amendment
because there is no indication the district court viewed the Guidelines as mandatory.
See United States v. Booker, 543 U.S. 220, 233-37, 245, 258-59 (2005) (concluding
the Sixth Amendment problem resulting from the mandatory nature of the Guidelines
is remedied by making the Guidelines advisory); United States v. Salter, 418 F.3d 860,
862 (8th Cir. 2005) (ruling, after Booker, the district court may enhance a sentence
based on judge-found facts if the court views the Guidelines as advisory).
Steven argues in his brief the “increase in the offense level in the case at bar
skews the ‘reasonableness’ analysis.” We further review the sentence for
reasonableness, finding no abuse of discretion by the district court, and conclude the
sentence is not unreasonable. See Gall v. United States, __ U.S. __, 128 S. Ct. 586,
596-97; Rita v. United States, __ U.S. __ 127 S. Ct. 2456, 2462 (2007); and Booker,
543 U.S. at 261.
We affirm.
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