1

The Honorable Ortrie D. Smith, United States District Judge for the Western

District of Missouri. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-2658

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Western

* District of Missouri.

Joseph Anthony Porrello, *

* [UNPUBLISHED]

Appellant. *

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Submitted: October 27, 2009 

Filed: October 30, 2009

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Before WOLLMAN, RILEY, and SMITH, Circuit Judges.

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PER CURIAM.

In this direct criminal appeal, Joseph Anthony Porrello challenges the 330-

month prison sentence the district court1

 imposed following this court’s remand for

resentencing. 

After a jury found Porrello guilty of multiple charges involving armed robbery,

money-laundering, and use and carrying of a firearm in relation to a crime of violence,

the district court imposed a total prison sentence of 421 months in prison, which
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included 60-month and 240-month consecutive sentences on the two firearm counts,

and concurrent terms of 121 months and 60 months on the remaining counts. See 18

U.S.C. § 924(c)(1) (1996) (first § 924(c) conviction requires consecutive sentence of

not less than 5 years, and second conviction requires consecutive sentence of not less

than 20 years). After resolution of an evidentiary issue, see United States v. Hatcher,

323 F.3d 666, 674 (8th Cir. 2003), we affirmed, see United States v. Hatcher, 142 Fed.

Appx. 956, 957 (8th Cir. 2005) (unpublished per curiam), but later vacated the

judgment and remanded for reconsideration in light of United States v. Booker, 543

U.S. 220 (2005). On remand, the district court reimposed the consecutive firearm

sentences but reduced the prison sentences on the remaining counts to concurrent

terms of 1 day in prison. We reversed, concluding that the district court erred in

considering the severity of the consecutive section 924(c) firearm sentences in

justifying its extraordinary variance from the Guidelines range of 121-151 months to

1 day in prison, which amounted to a significant weighting of an improper factor and

an abuse of sentencing discretion. We remanded for resentencing consistent with our

opinion. See United States v. Hatcher, 501 F.3d 931, 933-35 (8th Cir. 2007), cert.

denied, 128 S. Ct. 1133 (2008).

On remand, the district court once again imposed the consecutive firearm

sentences (totaling 300 months, or 25 years) but resentenced Porrello on the remaining

counts to concurrent 30-month prison terms. Porrello appeals, arguing that under Gall

v. United States, 128 S. Ct. 586 (2007), the district court erred in following this

court’s mandate and should have exercised its broad discretion to reimpose the 1-day

prison terms. For the following reasons, we affirm. 

Our reversal in 2007 was based on the district court’s abuse of discretion in

giving significant weight to an improper factor, namely, the consecutive prison terms

on the firearm convictions, and following Gall, a district court still abuses its

discretion when it gives significant weight to an improper factor in choosing a

sentence. See United States v. O’Connor, 567 F.3d 395, 396 (8th Cir.) (citing Gall
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Other circuits agree that imposition of a consecutive section 924(c) sentence

is an improper factor in determining a non-section 924(c) sentence. See United States

v. Calabrese, 572 F.3d 362, 369-70 (7th Cir. 2009) (declining to overrule United

States v. Roberson, 474 F.3d 432, 433-37 (7th Cir. 2007) (§ 924(c)(1)’s mandatory

consecutive sentences may not be used to justify reduced sentence for underlying

crime, which must be determined independently of any sentence imposed under §

924(c); collecting cases, including Hatcher, 501 F.3d 931), petition for cert. filed,

(U.S. Oct. 13, 2009) (No. 09-446).

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and reviewing substantive reasonableness of sentence under abuse-of-discretion

standard that included determining whether district court gave significant weight to

improper factor), cert. denied, 2009 WL 3045983 (U.S. Oct. 20, 2009) (No. 09-6618).2

The district court was therefore required to follow our mandate, and the court did so

by reconsidering the sentences for the non-firearm convictions independently of the

consecutive sentences for the two firearm convictions, and in light of its thorough

review of the 18 U.S.C. § 3553(a) factors. See United States v. Bartsh, 69 F.3d 864,

866 (8th Cir. 1995) (under law-of-case doctrine and closely related mandate rule,

decision in prior appeal is followed in later proceedings unless, inter alia, prior

decision is clearly erroneous and works manifest injustice; district court must follow

appellate court’s mandate).

Accordingly, we affirm. 

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