262 F. App'x 732
8th Cir.
2008

Gerald BRUMLEY, Appellant, v. GARLAND COUNTY, ARKANSAS; Larry Williams, in his official capacity as County Judge of Garland County, Arkansas; and Bill G. Davenport, individually and in his official capacity as County Justice of the Peace of Garland County, Arkansas, Appellees.

No. 07-1602.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 16, 2008. Filed: Feb. 7, 2008.

262 Fed. Appx. 732

Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.

Ralph Charles Ohm, Hot Springs, AR, for Appellees.

PER CURIAM.

Gerald Brumley appeals the district court‘s1 adverse grant of summary judgment in his 42 U.S.C. § 1983 action arising out of the maintenance by Garland County, Arkansas, of a road fronting his property. Upon de novo review, see Turner v. Honeywell Fed. Mfg. & Tech., 336 F.3d 716, 719-20 (8th Cir.2003), we conclude that the district court properly determined that Brumley‘s failure to pursue his state-court remedies was fatal to his federal claims, see Cormack v. Settle-Beshears, 474 F.3d 528, 531 (8th Cir.2007) (federal courts are barred from considering merits of takings claim until private litigant exhausts state remedies unless state‘s remedies are inadequate or unavailable; Arkansas’ inverse condemnation procedure provides adequate mechanisms for its citizens to be justly compensated for takings), and Brumley failed to establish a basis for holding the defendants liable, see Bd. of County Comm‘rs v. Brown, 520 U.S. 397, 403-04, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (plaintiff seeking to impose § 1983 liability on municipality must identify municipal policy or custom that caused his injury).

To the extent that Brumley raised state-law claims, we modify the dismissal of any such claims to be without prejudice. See Labickas v. Ark. State Univ., 78 F.3d 333, 334-35 (8th Cir.1996) (per curiam) (following dismissal of federal claims, district court has discretion to dismiss state law claims, but dismissal should be without prejudice). As modified, the judgment is affirmed. See 8th Cir. R. 47B.

UNITED STATES of America, Appellant, v. Patrick James McMANNUS, Appellee.

No. 06-2447.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 30, 2008. Filed: Feb. 7, 2008.

262 Fed. Appx. 732

Before MELLOY, SMITH and GRUENDER, Circuit Judges.

Kevin Craig Fletcher I, Assistant U.S. Attorney, John H. Lammers, Assistant U.S. Attorney, U.S. Attorney‘s Office, Northern District of Iowa, Sioux City, IA, for Appellant. John P. Greer, Greer Law Office, Spencer, IA, for Appellee. Patrick James McMannus, Fort Dodge, IA, pro se.

PER CURIAM.

Patrick James McMannus pled guilty to conspiracy to distribute methamphetamine and other offenses. The district court1 varied from an advisory sentencing guidelines range of 57 to 71 months and imposed a sentence of 24 months’ imprisonment. The Government appealed the sentence, and we vacated McMannus‘s sentence as unreasonable because extraordinary variances required extraordinary circumstances and the district court failed to provide a sufficient explanation for the variance. United States v. McMannus, 436 F.3d 871, 874 (8th Cir.2006) (”McMannus I“). On resentencing, the district court, relying on McMannus‘s post-sentencing rehabilitation, again imposed a sentence of 24 months’ imprisonment. Alternatively, the district court announced that it would have imposed the same sentence even if it had not considered McMannus‘s post-sentencing rehabilitation because McMannus quit using drugs after his first arrest in 2001, put himself through community college while on pretrial release, was employed while on pretrial release and was highly commended by his employer, was a “model” citizen while on pretrial release, and passed all of his drug tests. The Government again appealed, and we vacated McMannus‘s sentence and remanded for resentencing based on our circuit‘s precedent holding that post-sentencing rehabilitation is an impermissible factor for the district court to consider. United States v. McMannus, 496 F.3d 846, 851-52 (8th Cir.2007) (”McMannus II“) (citing United States v. Jenners, 473 F.3d 894, 899 (8th Cir.2007)). Additionally, we rejected the district court‘s alternative reasons for imposing the 24-month sentence because, as we decided in McMannus I, the circumstances were not sufficiently extraordinary to support such an extraordinary variance. Id. at 852.

McMannus filed a petition for rehearing. Shortly thereafter, the Supreme Court decided Gall v. United States, 552 U.S. ——, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), which rejected our requirement of extraordinary circumstances to justify extraordinary variances. Id. at 594; United States v. McGhee, 512 F.3d 1050, 1051-52 (8th Cir.2008). As a result, on January 30, 2008, we granted McMannus‘s petition for rehearing and vacated McMannus II2 to determine whether, in the absence of post-sentencing rehabilitation evidence, a sentence of 24 months’ imprisonment was unreasonable in light of Gall. Applying the “deferential abuse-of-discretion standard” in Gall, we now conclude that the district court‘s alternative reasons provide “sufficient justification” to support the district court‘s decision to vary from the advisory sentencing guidelines range to a sentence of 24 months’ imprisonment. See Gall, 128 S.Ct. at 591, 594. Accordingly, we affirm McMannus‘s sentence.

Notes

1
The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas. The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa.
2
In McMannus II, we also vacated the sentence of McMannus‘s co-defendant, Sheri Brinton. Our decision to vacate McMannus II is limited to McMannus and does not affect our prior decision regarding Brinton.