United States Court of Appeals

For the Eighth Circuit

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No. 18-1630

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United States of America

llllllllllllllllllPlaintiff - Appellee

v.

Eddie David Cox

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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Submitted: November 14, 2018

Filed: March 25, 2019 

[Unpublished]

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Before GRUENDER, KELLY, and GRASZ, Circuit Judges.

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PER CURIAM.
Following Eddie Cox’s conviction on twelve counts, the United States District

Court for the Western District of Missouri (“Western District”) sentenced him to life 1

imprisonment on Counts Five and Eight based on the Armed Career Criminal Act

(“ACCA”). See 18 U.S.C. § 924(e). Cox has completed his sentences for the other

counts of his indictment. This court affirmed a life sentence for Cox, United States

v. Cox, 942 F.2d 1282, 1286 (8th Cir. 1991), and we denied his application for leave

to file a successive 28 U.S.C. § 2255 motion on the basis he asserts here, see Cox v.

United States, No. 16-2029 (8th Cir. Oct. 6, 2016). Cox then filed a petition for writ

of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the

Central District of Illinois (“Central District”). The Central District identified what

it considered to be a “structural problem” with § 2255 that prevented Cox from

obtaining relief. Cox v. Krueger, No. 17-1099, 2017 WL 4706898, at *4 (C.D. Ill.

Oct. 19, 2017).

The Central District vacated Cox’s ACCA-enhanced sentences, Counts Five

and Eight, and ordered thatCox be delivered to the Western District for resentencing. 

Cox, 2017 WL 4706898 at *6. The Western District ordered an updated presentence

investigation report (“PSR”). The PSR calculated a total offense level of 30, a

criminal history category of VI, and a resulting guidelines range of 168 to 210

months’ imprisonment. The Western District conducted a de novo resentencing. It

resentenced Cox on Counts Five and Eight, the counts for which the sentences had

been vacated, and it also resentenced Cox on the remaining counts of his indictment

for a total sentence of 966 months’ imprisonment. 

This case is in an odd procedural posture because the Central District granted

Cox § 2241 relief but then ordered that the Western District conduct the resentencing,

rather than do so itself. The Government did not appeal the Central District’s

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

District of Missouri.

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decision, and the Western District was left with the unfortunate task of conducting

a resentencing according to an order from the Central District that is in tension with

our mandates affirming the sentence and denying Cox’s application for leave to file

a successive § 2255 motion. Unless one of our mandates contains “explicit or

implicit instructions to hold further proceedings, a district court has no authority to

re-examine an issue settled by a higher court.” Bethea v. Levi Strauss & Co., 916

F.2d 453, 456 (8th Cir. 1990). Here, the Western District did not re-examine an issue

decided by this court because the Central District granted the § 2241 relief and the

Western District merely conducted a resentencing consistent with the Central

District’s order. Because the Western District’s resentence is not inconsistent with

our orders nor is it inconsistent with 28 U.S.C. § 2243, which allows a court hearing

a § 2241 habeas claim to “dispose of the matter as law and justice require,” we

conclude the Western District had authority to conduct the resentencing asit did here.

In addition, principles of coordinate jurisdiction do not bar the resentencing as

Cox argues. When our district courts receive an order purporting to confer

resentencing jurisdiction, they are not obligated to agree with another district court

that a defendant is entitled to relief. See United States v. Auginash, 266 F.3d 781, 784

(8th Cir. 2001) (stating that giving precedential weight to district court opinions is

discretionary); 21 C.J.S. Courts § 253 (“Courts of [coordinate] jurisdiction are courts

of equal dignity asto the matters concurrently cognizable, neither having supervisory

power over the other.”). The Western District independently reviewed the record and

determined Cox’s resentence. We see no issue with coordinate jurisdiction where the

Western District voluntarily resentenced Cox.

Cox argues that the Western District erroneously conducted a de novo

resentencing. He claims that the Western District “exceeded the scope of the grant

of § 2241 relief” by resentencing Cox on all of the counts, instead of just Counts Five

and Eight. But even if we assume that the scope of the Central District’s order bound

the Western District, the Western District did not exceed the scope of the order. The

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Central District’s order said that the Western Districtshould consider whether United

States v. Rivera, 327 F.3d 612 (7th Cir. 2003), extends to Cox’s case. In Rivera, the

Seventh Circuit decided that resentencing a defendant on a count that was not

challenged on appeal does not violate the Double Jeopardy Clause because a

defendant “has no legitimate expectation of finality in any discrete portion of the

sentencing package after a partially successful appeal.” Rivera, 327 F.3d at 614

(internal quotation marks omitted). In other words, the Central District intended that

the Western District consider whether it could resentence Cox on the entire

sentencing package.

Cox next argues that the Double Jeopardy Clause allowed resentencing only

on Counts Five and Eight, the formerly ACCA-enhanced counts, because they were

the only sentences the Central District vacated and because Cox had “fully

discharged” his other sentences. We review double jeopardy issues de novo. United

States v. Okolie, 3 F.3d 287, 289 (8th Cir. 1993). We have held that “resentencing

on the served portion of . . . two interdependent sentences does not violate double

jeopardy.” United States v. Alton, 120 F.3d 114, 116 (8th Cir. 1997). A prisoner who

collaterally attacks a portion of a judgment reopens the entire judgment “and cannot

selectively craft the manner in which the court correctsthat judgment.” Id. Thus, the

Western District did not violate the Double JeopardyClause when it resentenced Cox

on all counts.

Finally, Cox argues that the Western District considered improper factors,

failed to adequately explain its sentence, and imposed a substantively unreasonable

sentence. First, we find no procedural error. The Western District adequately

explained its sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). It noted

Cox’s history of “destructive” and “violent” conduct as well asthe “repetitive nature”

of his offenses. The court also commented on Cox’s “lack of willingness to reform

[his] conduct upon sentence after sentence.” 

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Second, the sentence, although long, was not substantively unreasonable. We

review the reasonableness of a sentence for an abuse of discretion. United States v.

Jenkins, 758 F.3d 1046, 1050 (8th Cir. 2014). “A district court abuses its discretion

when it (1) fails to consider a relevant factor that should have received significant

weight; (2) gives significant weight to an improper or irrelevant factor; or (3)

considers only the appropriate factors but in weighing those factors commits a clear

error of judgment.” United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009)

(internal quotation marks omitted).

The Western District considered the appropriate 18 U.S.C. § 3553(a) factors. 

Cox cites nothing in the record to support his argument that the Western District

improperly relied on the originalsentencing decision. See Singer v. Harris, 897 F.3d

970, 980 (“We cannot tell whether the district court erred in a ruling if [Appellant]

does not direct us to a place in the record where we can find it . . . .”). Nevertheless,

the dissent argues that the district court in part “justified” its sentence based on the

original life sentence imposed in 1990. Post, at 7. The district court noted that Cox’s

conduct, the nature of his crimes, the repetitive nature of his crimes, and his lack of

willingness to reform his conduct “upon sentence after sentence exhibits that the

intention of Judge Hunter in sentencing [him] initially to a life sentence was a

reasonable and appropriate determination and that an extensive and lengthy sentence

is appropriate.” We do not think the district court’s comment indicates that it

justified its sentence based on the original sentence. Rather, the district court

observed that its own reasoning was consistent with that of the original sentencing

judge. 

Cox’s further argument that the Western District placed too great an emphasis

on his criminal history also fails. See United States v. Thorne, 896 F.3d 861 (8th Cir.

2018) (holding that the “consideration of [the defendant’s] criminal history and

likelihood to recidivate was not error”). Finally, Cox argues that the Western District

abused its discretion by not considering his post-offense rehabilitation, family needs,

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and his age. But Cox argued his family needs in his sentencing memorandum and

raised his rehabilitation argument at the sentencing hearing, and the Western District

recognized that Cox was at an “advanced age” at the sentencing hearing. Thus, we

presume that the Western District considered these factors. See United States v.

Timberlake, 679 F.3d 1008, 1012 (8th Cir. 2012) (presuming that the district court

considered mitigating factors where the defendant raised them in his sentencing

memorandum and at the sentencing hearing). The Western District adequately

explained its sentence and properly considered the appropriate factors. Thus, we find

no procedural or substantive error in the resentence.2

For the foregoing reasons, we affirm.

KELLY, Circuit Judge, concurring in part and dissenting in part. 

I agree with the court that the Western District had the authority to resentence

Cox following the Central District’s vacatur of his life sentences as illegal. And I

agree that under our precedents, the Western District was authorized to unbundle

Cox’s sentencing package and resentence him on all counts. See United States v.

McArthur, 850 F.3d 925, 943 (8th Cir. 2017) (rejecting the argument that unbundling

is permissible “only when the vacatur of one conviction permits the district court at

resentencing to apply a new enhancement under the advisory sentencing guidelines”);

Alton, 120 F.3d at 116 (holding that the Double Jeopardy Clause is not implicated by

resentencing on the served portion of a sentence to which a new enhancement applies

due to the vacatur of another conviction). But in my view, the sentence that the

Western District imposed was substantively unreasonable.

Cox argues that the Western District erred in denying his Rule 35(a) motion. 2

“We review questions of law presented in Rule 35 motions de novo.” United States

v. Jett, 782 F.3d 1050, 1051 (8th Cir. 2015). In that motion, Cox made the same

arguments addressed throughout this opinion. Thus, the Western District did not err

in denying the motion.

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When Cox was originally sentenced in 1990, the PSR calculated a mandatory

Guidelines range of 360 months’ to life imprisonment, and the Western District

imposed a within-Guidelines life sentence on several counts. When he was

resentenced in 2018, the updated PSR calculated a recommended Guidelines range

of 168 to 210 months’ imprisonment, and the Western District varied upwards from

the top of the Guidelines range by 756 months to impose a total sentence of 966

months’ imprisonment. In support of this sentence, the Western District cited Cox’s

“lengthy and extensive criminal history,” his “extremely destructive conduct, some

of which was violent in nature,” his “lack of willingnessto reform[his] conduct,” and

the original judge’s “intention . . . in sentencing [Cox] initially to a life sentence.” 

Because the 966-month sentence is outside the Guidelines range, we do not

presume that it is reasonable. See United States v. Moralez, 808 F.3d 362, 368 (8th

Cir. 2015). When considering the sentence’s reasonableness, we “consider the extent

of the deviation” from the Guidelines range, while giving “due deference to the

district court’s” weighing of the statutory sentencing factors. Id. (quoting Gall, 552

U.S. at 51). 

The upward variance imposed by the Western District is a 360-percent increase

over the top of the Guidelines range and transforms what would have been a sentence

of time served to an effective life sentence. The Western District justified this 63-

year variance based, in part, on an improper factor—the original life sentence

imposed in 1990. Section 3553(a) does not call for consideration of a defendant’s

original sentence, and for good reason: Cox’s original sentence was based on

statutory mandatory minimums and a mandatory Guidelines range that no longer

apply. See United States v. Tidwell, 827 F.3d 761, 764 (8th Cir. 2016) (explaining 3

Originally, Cox was sentenced to life imprisonment on three counts. His 3

conviction on one of those counts was subsequently vacated by this court. See Cox,

942 F.2d at 1284–86. The remaining two counts were subject to the ACCA’s 15-year

mandatory minimum sentence. After Johnson v. United States, 135 S. Ct. 2551

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that when resentencing a defendant under § 2255, the district court should apply “the

guidelines in effect at the time of resentencing, not at the time of the original

sentencing”). By considering Cox’s original sentence at resentencing, the Western

District imported inapplicable statutes and Guidelines into the new sentence.

The remaining factors considered by the Western District were proper, but they

do not provide the “significant justification” necessary to support such a substantial

variance above the recommended Guidelines range, Gall, 552 U.S. at 50, especially

when Cox has demonstrated post-offense rehabilitation by maintaining a clean

disciplinary record in prison for nearly three decades, among other things. See United

States v. Michael, 909 F.3d 990, 995 (8th Cir. 2018) (per curiam) (vacating a sentence

that was 966 percent above the revocation Guidelines range as substantively

unreasonable when the district court did not adequately explain the variance and may

not have been “sufficiently informed” about the case);see also United States v. Aleo,

681 F.3d 290, 302 (6th Cir. 2012) (vacating a sentence that was 145 percent above

the Guidelines range assubstantively unreasonable because “the justifications offered

by the district court d[id] not support the enormous variance”); cf., e.g., United States

v. Espinoza, 831 F.3d 1096, 1098 (8th Cir. 2016) (concluding that the defendant’s

“high risk of re-offending” and “the need to protect the public” justified a sentence

12 percent above the Guidelines range); Moralez, 808 F.3d at 368–69 (concluding

that the “breadth of [the] criminal enterprise” and the defendant’s “primary” role in

the enterprise justified a sentence 25 percent above the Guidelines range). Because

the Western District imposed a substantively unreasonable sentence, I would remand

the case to the Western District for resentencing.

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(2015), the ACCA no longer applied and the statutory maximum sentence on those

two counts fell to 10 years. Cox’s Guidelines range was also lower at resentencing

because he no longer qualified as a career offender and because of other changes in

the Guidelines.

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