United States v. Victor Vickers
688 F. App'x 400
| 8th Cir. | 2017Background
- Victor Vickers was convicted by a jury of conspiracy to distribute <100 kg of marijuana and initially sentenced to the statutory maximum 60 months.
- At the first sentencing the district court used evidence (investigator testimony and a videotaped interview) about Vickers' alleged role in the separate murder of Edward Ewing to apply the U.S.S.G. § 2D1.1 murder cross-reference, raising his base offense level and producing the 60-month sentence.
- On appeal the Eighth Circuit affirmed the conviction but held the murder cross-reference was improperly applied, vacated the sentence, and remanded for resentencing. United States v. Taylor, 813 F.3d 1139 (8th Cir. 2016).
- Between the issuance of the appellate mandate and the resentencing, Vickers was convicted in state court of the Ewing murder.
- At resentencing the district court declined to apply the murder cross-reference but considered the Ewing murder (and the state conviction) when weighing the 18 U.S.C. § 3553(a) factors and again imposed the 60-month statutory maximum.
- Vickers appealed, arguing the district court erred by considering the Ewing murder on remand and that the sentence was substantively unreasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court was barred by the prior appellate mandate from considering Vickers' alleged involvement in the Ewing murder at resentencing | Vickers: mandate required resentencing only on the existing record excluding the Ewing murder; new state-court conviction is "new evidence" that should not be considered | Government: remand was general; district court may resentence de novo and consider relevant conduct and evidence for § 3553(a) purposes | Court: remand was general; district court permissibly considered the Ewing murder at resentencing; no mandate-based bar |
| Whether evidence of the Ewing murder could be considered at resentencing outside the § 2D1.1 murder cross-reference | Vickers: the Ewing murder was improperly relied on and was irrelevant to § 3553(a) | Government: prior criminal conduct (even uncharged) may inform § 3553(a); court may find conduct by preponderance | Court: evidence of the murder was admissible for § 3553(a) analysis; district court could have considered it at the first sentencing and properly did so on remand |
| Whether the district court’s consideration of the Ewing murder was a procedural sentencing error (e.g., reliance on clearly erroneous facts) | Vickers: court relied on improper/irrelevant factor (the murder) when selecting sentence | Government: court applied correct standard and considered § 3553(a) factors; findings permissible by preponderance | Court: no procedural error; the finding and consideration were within sentencing discretion |
| Whether the 60-month sentence was substantively unreasonable (greater than necessary or disparate) | Vickers: sentence is greater than necessary and disparate from similar defendants | Government: district court has deference; it reasonably concluded defendant’s conduct warranted maximum | Court: sentence not an abuse of discretion; district court reasonably weighed § 3553(a) and relied on defendant’s dangerousness and criminal history |
Key Cases Cited
- United States v. Taylor, 813 F.3d 1139 (8th Cir. 2016) (vacating sentence and remanding because murder cross-reference was improperly applied)
- Gall v. United States, 552 U.S. 38 (2007) (procedural and substantive reasonableness review of sentences)
- United States v. O'Connor, 567 F.3d 395 (8th Cir. 2009) (two-step abuse-of-discretion review for sentencing)
- Pepper v. United States, 562 U.S. 476 (2011) (general remands permit district court discretion on resentencing)
- United States v. Reid, 827 F.3d 797 (8th Cir. 2016) (on remand courts may consider any evidence they could have received at the original sentencing)
- United States v. Loaiza-Sanchez, 622 F.3d 939 (8th Cir. 2010) (prior criminal conduct may be part of the defendant’s history and considered under § 3553(a))
- United States v. Waller, 689 F.3d 947 (8th Cir. 2012) (sentencing court may find uncharged conduct by a preponderance for § 3553(a) consideration)
- United States v. Richart, 662 F.3d 1037 (8th Cir. 2011) (deference to district court’s factual findings and § 3553(a) judgments)
- United States v. Bates, 614 F.3d 490 (8th Cir. 2010) (distinguishing limited vs. general remands)
- United States v. Tidwell, 827 F.3d 761 (8th Cir. 2016) (post-conviction events between sentencing and resentencing may justify an increased sentence)