United States v. Dorrell Emmanuel King, 691 F.3d 939

King pled guilty to robbing two banks in violation of 18 U.S.C. § 2113(a), less than four years after being released from federal prison where he committed a six‑month crime spree involving fourteen bank robberies in six states.
The government moved for an upward departure, arguing that, if the fourteen robberies had not been prosecuted together, King would qualify as a career‑offender under § 4B1.1(a) with a range of 151–188 months.
The district court departed under § 4A1.3(a)(1) for substantially underrepresented criminal history, set a criminal history category of VI and an offense level of 23, yielding an advisory range of 92–115 months, and sentenced King to 108 months.
King moved under 28 U.S.C. § 2255 to vacate the sentence for ineffective assistance of counsel failing to appeal; after an evidentiary hearing, the court vacated and resentenced.
At resentencing, the government again sought an upward departure to the career‑offender range; the district court again departed to category VI and level 23, with an advisory range of 92–115 months and a 108‑month sentence.
King appeals, challenging whether resentencing violated double jeopardy or due process, whether the § 4A1.3 departure was properly explained, and whether the court’s consideration of the government’s request under Gall was proper.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Double jeopardy and due process in resentencing	King contends Durbin bars any harsher sentence after appeal.	King argues resentencing violates double jeopardy and due process because no new aggravating facts or reconviction occurred.	No reversible error; resentencing followed proper procedure and did not impose a harsher sentence.
Validity of § 4A1.3 departure to career‑offender range	King contends the departure was unwarranted and incomplete justification for bypassing level 22.	King argues the court’s explanation for the departure was insufficient.	Issue not preserved for review; court declines to address.
Consideration of government’s career‑offender request under Gall	King argues the district court erred by considering the career‑offender request and then the top of the advisory range to punish rehabilitation and impose more punishment.	King contends Gall error occurred in considering but not imposing a harsher sentence.	No reversible error; district court could consider and did not impose a harsher sentence.

United States v. Durbin, 542 F.2d 486 (8th Cir. 1976) (double jeopardy concerns in resentencing when no reconviction)
United States v. Evans, 314 F.3d 329 (8th Cir. 2002) (restraints on double jeopardy in resentencing after appeal)
United States v. Arrington, 255 F.3d 637 (8th Cir. 2001) (vindictiveness requires harsher sentence actually imposed)
United States v. Prado, 204 F.3d 843 (8th Cir. 2000) (procedure after §2255: vacate then reimpose with updated factors)
Pepper v. United States, 131 S. Ct. 1229 (2011) (post-sentencing conduct may be relevant per Gall in review of departure)
Mejia-Perez, 635 F.3d 351 (8th Cir. 2011) (preservation requirement for objections at sentencing)
GALL v. United States, 552 U.S. 38 (2007) (reasonableness review and application to § 3553(a) factors)
United States v. Evans, 314 F.3d 329 (8th Cir. 2002) (double jeopardy considerations in resentencing after successful appeal)