United States Court of Appeals

For the Eighth Circuit

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No. 14-2630

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Antonio Shaw, also known as Lips, also known as A1

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: February 6, 2015

Filed: March 23, 2015

[Unpublished]

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Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges. 

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PER CURIAM.

In 2012, a jury found Antonio Shaw guilty of conspiring to distribute cocaine

base and marijuana, and of possessing a firearm in furtherance of a drug-trafficking

offense. On appeal, this court upheld the convictions, but vacated the firearmpossession sentence based on Alleyne v. United States, 133 S. Ct. 2151 (2013). See

United States v. Shaw, 751 F.3d 918 (8th Cir. 2014).
On remand, the district court recognized the correct mandatory minimum 1

sentence for the firearm-possession offense, then imposed the same sentences as

before: consecutive prison terms of 210 and 168 months. These sentences were

above the calculated advisory range under the United States Sentencing Guidelines. 

In this appeal, Shaw’s counsel has moved to withdraw and has filed a brief under

Anders v. California, 386 U.S. 738 (1967), arguing that the drug quantity attributed

to Shaw for purposes of calculating his advisory Guidelines range was not supported

by the evidence and that in choosing a sentence above the Guidelines range, the

district court erred in considering evidence presented at sentencing regarding

uncharged criminal conduct. In a pro se brief, Shaw additionally argues (1) the

district court failed to remedy the Alleyne error; (2) the evidence did not support his

conviction for conspiring to distribute cocaine base; (3) the evidence did not support

certain enhancements included in the calculation of his total offense level under the

Guidelines; and (4) the court erred in calculating his criminal history.

Shaw’s challenges to the sufficiency of the evidence, the enhancements other

than the drug quantity used in calculating his offense level, and his criminal history

are precluded because, in his first appeal, these issues either were not raised or were

decided adversely to him. See United States v. Walterman, 408 F.3d 1084, 1085-86

(8th Cir. 2005) (in appeal following remand, refusing to consider issues not brought

to court’s attention in first appeal; noting defendant does not get second chance to

make argument not supported in first appeal just because he is resentenced); United

States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995) (when appellate court remands

case, “all issues decided by the appellate court become the law of the case” and may

not be relitigated).

The Honorable Henry E. Autrey, United States District Judge for the Eastern 1

District of Missouri.

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We will consider Shaw’s remaining counseled and pro se challenges, as our

prior opinion expressly reserved any review of the procedural and substantive

reasonableness of Shaw’s sentences. See 751 F.3d at 923 n.1; see also United States

v. Hatter, 532 U.S. 557, 566 (2001) (law-of-case doctrine presumes hearing on

merits). First, to the extent that Shaw initially challenged and now continues to

challenge the drug-quantity calculation, we find no clear error. See United States v.

Walker, 688 F.3d 416, 421-22 (8th Cir. 2012) (sentencing court may determine drug

quantity based on testimony of co-conspirator alone); United States v. Payton, 636

F.3d 1027, 1046 (8th Cir. 2011) (standard of review); United States v. Weiland, 284

F.3d 878, 882-83 (8th Cir. 2002) (discussing factors relevant when determining if

prior drug-possession conviction properly was counted as relevant conduct to

conspiracy offense for purposes of determining base-offense level). Second, we

conclude that the district court did not err in considering evidence of uncharged

criminal conduct that was presented at the sentencing hearing. See United States v.

Loaiza-Sanchez, 622 F.3d 939, 942 (8th Cir. 2010) (prior criminal conduct, whether

or not related to offense of conviction, is part of history and characteristics of

defendant that court shall consider in imposing appropriate sentence); United States

v. Jenners, 537 F.3d 832, 835-36 (8th Cir. 2008) (court may consider uncharged

criminal conduct). Third, we find no merit to Shaw’s argument that the court failed

to remedy its Alleyne sentencing error on remand. The court recognized the correct

statutory mandatory minimum sentence, then imposed a sentence based on its

consideration of the factors in 18 U.S.C. § 3553(a). Finally, upon independently

reviewing the record in accordance with Penson v. Ohio, 488 U.S. 75, 80 (1988), we

conclude that the sentences are not unreasonable, see United States v. Feemster, 572

F.3d 455, 461 (8th Cir. 2009) (en banc) (abuse-of-discretion review of sentencing

decision); United States v. Magnum, 625 F.3d 466, 470 (8thCir. 2010) (where district

court sufficiently explains sentencing decision, appellate court gives due deference

to court’s decision that § 3553(a) factors, on whole, justify extent of variance).

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Accordingly, we grant counsel’s motion to withdraw, and we affirm the

judgment of the district court.

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