United States Court of Appeals

For the Eighth Circuit

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No. 16-3665

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Victor Vickers

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: April 7, 2017

 Filed: May 3, 2017

[Unpublished]

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Before GRUENDER, MURPHY, and KELLY, Circuit Judges.

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PER CURIAM.

After a jury convicted Victor Vickers of conspiracy to distribute marijuana the

district court sentenced him to the statutory maximum of 60 months imprisonment. 

Vickers appealed. We affirmed his conviction, but vacated his sentence and

remanded for resentencing due to an error in the district court's application of the

sentencing guidelines. See United States v. Taylor, 813 F.3d 1139, 1151 (8th Cir.
2016). On remand the district court again sentenced Vickers to 60 months

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imprisonment. Vickers appeals, and we affirm.

I.

In September 2014 a jury convicted Vickers of conspiracy to distribute less

than 100 kilograms of marijuana. Prior to sentencing the probation office prepared

a presentence investigation report that indicated that Vickers was facing charges in

state court for allegedly participating in the murder of a man named Edward Ewing. 

At his sentencing proceeding the government called an officer who had investigated

the murder to testify and also introduced a videotaped interview of Ewing's girlfriend,

who had been present during the murder. On the basis of this evidence the district

court found that Vickers had participated in the murder and concluded that the murder

was "drug-related activity" that warranted the application of the murder cross

reference in the guidelines section for drug related offense conduct. See U.S.S.G.

§ 2D1.1(d)(1). The application of the murder crossreference increased Vickers' base

offense level from 12 to 43. The district court sentenced Vickers to the statutory

maximum of 60 months imprisonment.

Vickers appealed. We affirmed his conviction but concluded that the district

court erred when it applied the murder cross reference at Vickers' sentencing. See

Taylor, 813 F.3d at 1150–51. We thus "vacate[d] his sentence and remand[ed] his

case for resentencing." Id. at 1151. After our mandate issued but before Vickers'

resentencing hearing, he was convicted in state court of the Ewing murder. Although

the district court heeded our directive that the murder cross reference was

inapplicable, the court considered Vickers' involvement in the Ewing murder in

resentencing him. Vickers was again sentenced to 60 months imprisonment. Vickers

The Honorable Gary A. Fenner, United States District Judge for the Western 1

District of Missouri.

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appeals, arguing that the district court erred in considering the Ewing murder at his

resentencing proceeding and contending that his sentence is substantively

unreasonable. 

II.

We review the sentence imposed by a district court for abuse of discretion and

proceed "in two steps: first, we review for significant procedural error; and second

. . . we review for substantive reasonableness." United States v. O'Connor, 567 F.3d

395, 397 (8th Cir. 2009). Procedural errors include "failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

failing to consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence—including an

explanation for any deviation from the Guidelines range." Gall v. United States, 552

U.S. 38, 51 (2007). A district court may impose a substantively unreasonable

sentence if it "fails to consider a relevant factor that should have received significant

weight; gives significant weight to an improper or irrelevant factor; or considers only

the appropriate factors but commits a clear error of judgment." O'Connor, 567 F.3d

at 397 (quoting United States v. Saddler, 538 F.3d 879, 890 (8th Cir. 2008)).

A.

Vickers first contends that the district court committed procedural error when

resentencing him. His sole argument in this regard is that the district court erred by

taking his conviction for the murder of Edward Ewing into account when weighing

the factors outlined in 18 U.S.C. § 3553(a) and crafting his sentence. Vickers argues

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Notably, Vickers does not argue that the district court committed procedural 2

error by failing adequately to explain its chosen sentence. See United States v.

Wearing, 837 F.3d 905, 910 n.6 (8th Cir. 2016) (per curiam) (arguments not

sufficiently developed in opening brief are deemed waived). 

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that any consideration of the Ewing murder should have been barred by our mandate

in his prior appeal which he construes as ordering the court to sentence him "on the

record already before the Court, less the Ewing murder." Vickers also contends that

his conviction for the Ewing murder, which happened after our mandate was issued

but before his resentencing, amounted to "new evidence" that should not have been

introduced or considered.

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We disagree with Vickers' construction of the scope of our mandate. In our

opinion on his prior appeal, we concluded simply that the fact that the district court

applied the murder cross reference when sentencing him was error and "therefore

vacate[d] his sentence and remand[ed] his case for resentencing." Taylor, 813 F.3d

at 1151. In other words, our opinion directed the district court to resentence Vickers

without applying the murder cross reference but placed no other "limitations on the

discretion of the . . . district court judge." See Pepper v. United States, 562 U.S. 476,

506 (2011) (internal quotation marks omitted). Our remand was thus a general one

that contemplated resentencing de novo. See United States v. Bates, 614 F.3d 490,

494 (8th Cir. 2010) ("On remand, we may provide instructions limiting the scope of

the district court's discretion or we may remand without limitations."). The district

court adhered to our instructions by declining to apply the murder cross reference at

resentencing. 

Having determined that the district court's consideration of the Ewing murder

was not barred by our prior mandate, we next address the question of whether

Neither before the district court nor on appeal has Vickers argued that his

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conviction for the Ewing murder should not have been used when calculating his

criminal history under the guidelines; his only objection is to the district court's use

of that conduct when weighing the § 3553(a) sentencing factors. Since the issue is

not before us, we express no opinion as to whether the district court erred by using

the Ewing conviction in its calculation of Vickers' criminal history. See Wearing,

837 F.3d at 910 n.6. 

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evidence of Vickers' involvement in the murder could properly be considered outside

the context of the murder cross reference provision of the guidelines. We conclude

that it could. When we remand a case for resentencing de novo, a district court is

"permitted to consider any relevant evidence that it could have received at [the

defendant's] first sentencing hearing." United States v. Reid, 827 F.3d 797, 801 (8th

Cir. 2016). In this case the district court not only could have, but did, receive

evidence related to the Ewing murder at Vickers' first sentencing hearing. This

evidence included testimony from an officer who had investigated the murder and a

videotaped interview of the victim's girlfriend who had been present during the

murder. Vickers also presented testimony from an attorney who had represented him

in connection with the state murder charges and who believed in Vickers' innocence. 

At the conclusion of the evidence, the district court found that Vickers was involved

in the murder. 

Although the district court erred in using thisfinding to apply the murder cross

reference at Vickers' first sentencing, nothing would have precluded it from

determining at that proceeding that the Ewing murder was relevant to its weighing of

the § 3553(a) sentencing factors. We have repeatedly held that "prior criminal

conduct, whether or not related to the offense of conviction, . . . is part of 'the history

and characteristics of the defendant' that the court 'shall consider' in imposing an

appropriate sentence, 18 U.S.C. § 3553(a)(1), and it may be relevant in a particular

case to the factors enumerated in § 3553(a)(2)." United States v. Loaiza-Sanchez,

622 F.3d 939, 942 (8th Cir. 2010). Such criminal conduct may be considered

regardless of whether the defendant has been charged or convicted for that conduct. 

At sentencing, the district court need only find by a preponderance of the evidence

that the defendant committed the crime at issue for the conduct properly to be

considered in connection with the court's analysis of the broad and inclusive

§ 3553(a) factors. See United States v. Waller, 689 F.3d 947, 960 (8th Cir. 2012) (per

curiam). Since the district court could have found that Vickers was involved in the

Ewing murder and properly considered that conduct when weighing the § 3553(a)

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factors at his first sentencing, it did not commit procedural error when it did so at his

resentencing. See Reid, 827 F.3d at 801; see also United States v. Tidwell, 827 F.3d

761, 764 (8th Cir. 2016) (noting that a conviction that occurred between a sentencing

and a resentencing could provide grounds for an increased sentence).

B.

Vickers also argues that his sentence is substantively unreasonable. He

advances multiple arguments in support of this allegation. First, he argues that his

involvement in the Ewing murder was an "improper or irrelevant factor," O'Connor,

567 F.3d at 397, to which the district court gave significant weight. As discussed at

length above, however, we conclude that the district court could properly consider the

Ewing murder in connection with its weighing of the § 3553(a) factors. See United

States v. Richart, 662 F.3d 1037, 1052 (8th Cir. 2011). The court's consideration of

the Ewing murder in crafting Vickers' sentence therefore does not render his sentence

substantively unreasonable.

Vickers also argues that his sentence is substantively unreasonable because it

is greater than necessary to satisfy the § 3553(a) factors and is disparate from the

sentences given similarly situated defendants. After careful review, we conclude that

these arguments fail to establish that the district court abused its discretion in

sentencing Vickers. District courts have an "'institutional advantage' in finding facts

and judging their import under § 3553(a)" that entitles their sentencing decisions to

considerable deference. Richart, 662 F.3d at 1055. We are not permitted to "set aside

a sentence merely because we would have decided that another one is more

appropriate." Id. at 1054 (quoting United States v. Irey, 612 F.3d 1160, 1191 (11th

Cir. 2010) (en banc)). At Vickers' resentencing the district court recited the relevant

§ 3553(a) factors and informed Vickers that it was imposing the maximum sentence

allowed by statute because Vickers "led a very destructive life that was very much a

danger to the community as evidenced by" his involvement in the drug conspiracy

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and the Ewing murder. We cannot say that this determination, or the sentence

imposed in reliance on it, was an abuse of the court's discretion. Indeed, we have

previously upheld similar sentencing decisions in comparable cases. See, e.g., id. at

1053; see also United States v. Roberson, 334 F. App'x 787, 789–90 (8th Cir. 2009)

(per curiam) (unpublished).

III.

Accordingly, we affirm the judgment of the district court.

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