1

The Honorable J. Leon Holmes, Chief Judge, United States District Court for

the Eastern District of Arkansas.

 United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-2709

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Dexter Ross, *

*

Appellant. *

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Submitted: December 13, 2010

Filed: June 9, 2011

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Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges. 

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WOLLMAN, Circuit Judge.

A jury found Dexter Ross guilty of drug and firearm charges. The district

court1

—resentencing Ross after two prior remands from our court—sentenced him to

72 months’ imprisonment. Ross appeals, arguing that his sentence is substantively

unreasonable because the district court failed to defer to the intent of the original

sentencing judge. We affirm.
2

The original sentencing judge died while Ross’s first sentence was on appeal.

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I.

This case is now before us for the third time. Although we have already

affirmed Dexter Ross’s drug and firearm convictions, see United States v. Ross, 487

F.3d 1120 (8th Cir. 2007) [Ross I], we have twice vacated his sentence, see id.; United

States v. Ross, 323 F. App’x 483 (8th Cir. 2009) [Ross II]. At Ross’s first sentencing,

the district court computed a guidelines range of 110 to 137 months’ imprisonment

and imposed a sentence of 137 months, but decided to suspend 77 of those months

because it felt that Ross had “turned his life around” and “seen the light.” On appeal,

we vacated the sentence on the ground that the district judge did not have the authority

to impose a suspended sentence and “remand[ed] for resentencing consistent with

[our] opinion.” Ross I, 487 F.3d at 1124-25. 

On remand, Ross was sentenced by a different district judge2

 to 96 months’

imprisonment. Only a few days later, the Supreme Court decided Gall v. United

States, 552 U.S. 38 (2007), and, on that basis, Ross again appealed his sentence.

Because Gall permitted more sentencing discretion than our prior cases had held was

available, we vacated Ross’s second sentence and again remanded “for resentencing

consistent with [our] opinion,” stressing, however, that we were “express[ing] no

opinion as to the reasonableness or appropriateness of the original or revised sentences

in this case.” Ross II, 323 F. App’x at 483-84. 

On this second remand, the district court sentenced Ross to 72 months’

imprisonment, rejecting Ross’s request for a “reimposition of the original sentence in

a technically correct manner,” i.e., “a term of imprisonment of 60 months followed by

a lengthy term of supervised release.” This appeal followed. 
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II.

Ross argues that “the district court erred in failing to give adequate

consideration to the original sentencing court’s reasoning and intent when it

determined that a sentence involving sixty months of confinement and seventy-seven

months of supervision was appropriate.” Appellant’s Br. at 11. In his view, the

district judge on remand should have “give[n] substantial deference to the original

court’s sentence.” Id. Not to do so, he says, was either a “fail[ure] to consider a

relevant factor that should have received significant weight” or “a clear error of

judgment” in weighing the relevant factors, both of which constitute abuses of a

district court’s discretion, see United States v. Feemster, 572 F.3d 455, 461 (8th Cir.

2009), that render the sentence substantively unreasonable, see Gall, 552 U.S. at 56-

60.

We note at the outset that the district court on resentencing did indeed consider

the intent of the original sentencing judge. See Resentencing Tr. at 15:12-21, July 10,

2009 (“But in weighing all of those factors, looking back at what Judge Howard

apparently intended after hearing all of the evidence, looking back at the sentencing

last time, and understanding that I have to take into account the seriousness of the

crime as well as these other things . . . I’ve concluded that Mr. Ross should be

sentenced to a term of imprisonment of 72 months followed by four years of

supervised release.”). Therefore, all that remains of Ross’s claim is an argument that

the district court gave too little weight to the original sentence.

The Supreme Court recently addressed a similar question in another case from

our court. See Pepper v. United States, 131 S. Ct. 1229 (2011). In Pepper, the

original sentencing judge granted Pepper a 40 percent downward departure for his

substantial assistance. We vacated that sentence on grounds unrelated to the

substantial assistance departure and remanded with instructions that a different district

judge be assigned for the purpose of resentencing. That judge granted only a 20
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percent downward departure. Pepper argued that the resentencing judge was bound

by the law of the case doctrine to apply the same 40 percent departure granted by the

original sentencing judge, but the Supreme Court disagreed.

Noting that our mandates were “general remands for resentencing, which did

not place any limitations on the discretion of the newly assigned district court judge

in resentencing,” id. at 1239, the Supreme Court concluded that even if the 40 percent

departure was at one point law of the case, our general remand “effectively wiped the

slate clean,” id. at 1251. This was so even though we had vacated Pepper’s sentence

“on grounds unrelated to the substantial assistance departure.” Id.

Pepper does not answer the precise question presented by this case, inasmuch

as Ross does not argue that the district court was bound by the original sentence. But

it does teach that the effect of a general remand for resentencing “effectively wipe[s]

the slate clean.” And we think that principle applies equally here.

Both of our prior remands in this case were “general remands for resentencing

which did not place any limitations on the discretion of the newly assigned district

court judge in resentencing.” Id. at 1239. Indeed, our most recent opinion explicitly

“express[ed] no opinion as to the reasonableness or appropriateness of the original or

revised sentences in this case.” Ross II, 323 F. App’x at 484. That is, we have never

held that Ross’s original sentence was substantively reasonable, much less that it was

the only sentence that would be substantively reasonable. Accord Pepper, 131 S. Ct.

at 1250 n.18 (“In any event, . . . neither Pepper II nor Pepper III held that a 40 percent

downward departure was the only reasonable departure that a sentencing court could

grant for Pepper’s substantial assistance.”). We therefore see no reason, and Ross

provides none, that the district court should be required to give deference to that

judgment. To be sure, the district judge on resentencing must consider the factors

relevant to sentencing, including both the “history and characteristics of the

defendant” as well as the goals of federal criminal sentencing. See 18 U.S.C.
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§ 3553(a). And it must weigh those factors in a manner that is “reasonable.” Gall v.

United States, 552 U.S. 38, 46 (2007). Doing so may yield the same result reached

by the original sentencing judge, or it may not. But that is an exercise in sentencing

discretion, which we review deferentially. See Feemster, 572 F.3d at 461-64. Here,

in fashioning Ross’s sentence, the district court considered Ross’s particular

circumstances, including his criminal history, the likelihood that he will commit future

crimes, the seriousness of his offense, and his relative culpability as compared with

others who were involved. In light of the district court’s explanation of the effect of

those factors, we cannot say that it abused its discretion in imposing a sentence of 72

months’ imprisonment.

III.

The sentence is affirmed.

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