United States v. John Davis, 276 F. App'x 527

United States v. John Davis

276 F. App'x 527

8th Cir.

2008

Check Treatment

Docket

James R. MICKELSON, Suing as James Roy Mickelson, Appellant, v. Warden Carol HOLINKA, Appellee.

No. 07-3243.

United States Court of Appeals, Eighth Circuit.

Submitted: April 30, 2008. Filed: May 5, 2008.

527 F.3d 527

James R. Mickelson, Suing as James Roy Mickelson, Waseca, MN, pro se.

Robert Mathias Lewis, Assistant U.S. Attorney, U.S. Attorney‘s Office, Minneapolis, MN, for Appellee.

Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.

[UNPUBLISHED]

PER CURIAM.

James R. Mickelson appeals the district court‘s¹ denial of his 28 U.S.C. § 2241 petition and related motion challenging the Bureau of Prisons’ denial of his requests for immediate halfway-house placement. We dismiss the appeal as moot, because Mickelson was transferred to a halfway house on April 15, 2008. See Calderon v. Moore, 518 U.S. 149, 150, 116 S.Ct. 2066, 135 L.Ed.2d 453 (1996) (per curiam) (when event occurs during pendency of appeal that renders it impossible for court—if it should decide case in appellant‘s favor—to grant effective relief, court will dismiss appeal as moot). We also decline to address Mickelson‘s new claims on appeal, see Poolman v. City of Grafton, 487 F.3d 1098, 1101 (8th Cir.2007), and we deny the pending motions.

UNITED STATES of America, Appellee, v. John Edward DAVIS, Appellant.

No. 07-2661.

United States Court of Appeals, Eighth Circuit.

Submitted: April 28, 2008. Filed: May 5, 2008.

Travis D. Poindexter, Asst. Fed. Public Defender, Kansas City, MO (Raymond C. Conrad, Jr., Fed. Public Defender, on the brief), for appellant.

Bruce E. Clark, Asst. U.S. Atty., Kansas City, MO (John F. Wood, U.S. Atty., on the brief), for appellee.

Before BYE, SMITH, and BENTON, Circuit Judges.

[UNPUBLISHED]

PER CURIAM.

John Davis challenges the within-Guidelines-range sentence the district court¹ imposed after he pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, he argues that the district court imposed an unreasonable sentence because it failed to consider a proposed amendment to the Guidelines that would have lowered the advisory Guidelines imprisonment range. Alternatively, Davis urges this court to remand his case for resentencing so the district court can apply the amendment, which became effective after his sentencing.

Upon careful review, we conclude that the district court properly used the Guidelines that were in effect at the time of sentencing. See U.S.S.G. § 1B1.11 (court generally should use Guidelines in effect on date of sentencing); United States v. Ingram, 501 F.3d 963, 968 (8th Cir.2007) (district court‘s application of Guidelines reviewed de novo), petition for cert. filed, (U.S. Dec. 5, 2007) (No. 07-8093).

We also believe that Davis‘s sentence is not unreasonable. See Rita v. United States, — U.S. —, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007) (approving appellate presumption of reasonableness); United States v. Harris, 493 F.3d 928, 932 (8th Cir.2007) (applying presumption of reasonableness), cert. denied, — U.S. —, 128 S.Ct. 1263, 170 L.Ed.2d 111 (2008); see also United States v. Turbides-Leonardo, 468 F.3d 34, 41 (1st Cir.2006) (it is rare for Guidelines sentence to be greater than necessary to achieve statutory goals of sentencing), cert. denied, — U.S. —, 127 S.Ct. 3064, 168 L.Ed.2d 773 (2007).

Finally, we decline to remand this case for resentencing because the Sentencing Commission has not designated the amendment at issue as one that may be applied retroactively. See United States v. Auman, 8 F.3d 1268, 1272 (8th Cir.1993) (amendment to Guidelines may not be applied retroactively unless Sentencing Commission has expressly designated it as one that may be applied retroactively).

Accordingly, the judgment is affirmed.

Michael JEFFERY, Appellant, v. Warden, John F. AULT, Appellee.

No. 06-3327.

United States Court of Appeals, Eighth Circuit.

Submitted: Dec. 7, 2007. Filed: May 5, 2008.

Paul Herschel Rosenberg, Paul Rosenberg & Associates, P.C., Des Moines, IA, for Appellant.

Robert P. Ewald, Attorney General‘s Office, Des Moines, IA, for Appellee.

Notes

The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota, adopting the report and recommendations of the Honorable Susan Richard Nelson, United States Magistrate Judge for the District of Minnesota. The Honorable Dean Whipple, United States District Judge for the Western District of Missouri.