U.S. v. Prestemon, 91-2553
| Decision Date | 09 January 1992 |
| Docket Number | No. 91-2553,91-2553 |
| Citation | 953 F.2d 1089 |
| Parties | UNITED STATES of America, Appellee, v. Damon Rae PRESTEMON, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Scott Tilsen, Minneapolis, Minn., for appellant.
Denise Reilly, Asst. U.S. Atty., Minneapolis, Minn., for appellee.
Before McMILLIAN, Circuit Judge, HEANEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.
Damon Rae Prestemon appeals from the final judgment entered in the District Court 1 for the District of Minnesota upon resentencing after he pleaded guilty to armed bank robbery, 18 U.S.C. § 2113(a), (d). The district court previously sentenced Prestemon under the Sentencing Guidelines to twenty-four months imprisonment, which represented a downward departure from the applicable Guideline range of 33 to 41 months. We vacated the sentence and remanded for resentencing in United States v. Prestemon, 929 F.2d 1275, 1276 (8th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 220, 116 L.Ed.2d 178 (1991) (Prestemon I ). For reversal, Prestemon argues that the district court was under the mistaken belief that we had completely limited the district court's authority to depart downward from the Guidelines on resentencing. For the reasons discussed below, we affirm Prestemon's sentence.
The district court's initial downward departure was based on Prestemon's status as a bi-racial individual who had been adopted by white parents, and on the disparity between the sentencing range applicable to Prestemon and the lower range applicable to a defendant in a bank fraud case pending before the court. The district court had also noted that Prestemon was only twenty-one years old at the time of the offense, had been an honor student in high school, and had successfully completed one year of vocational training. Id.
We concluded in Prestemon I that the district court had abused its discretion in departing downward based on Prestemon's status as a bi-racial adopted child, and that the court should not have relied on the perceived disparity between the sentencing ranges applicable in Prestemon's case and in another bank case. Id. at 1277-78. We stated that the district court "on remand should consider [Prestemon's status as a bi-racial adopted child], as well as [Prestemon's] excellent academic record and other factors, in deciding the sentence to be imposed within the applicable guideline sentencing range." We remanded "for resentencing within the applicable guideline sentencing range." Id. at 1278.
On remand, Prestemon argued that this court had not directed the district court to impose any specific sentence and urged other bases for a downward...
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...at resentencing by the appellate court." United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992) (citing United States v. Prestemon, 953 F.2d 1089 (8th Cir.1992) (trial court could not consider new bases for downward departure where remand was limited to resentencing within the applica......
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...court must, however, adhere to any limitations imposed on its function at resentencing by the appellate court. See United States v. Prestemon, 953 F.2d 1089 (8th Cir.1992) (trial court could not consider new bases for downward departure on remand where remand was limited to resentencing wit......
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...court pursuant to this court's remand order, see Klein v. Arkoma Prod. Co., 73 F.3d 779, 784 (8th Cir.1996); cf. United States v. Prestemon, 953 F.2d 1089, 1090 (8th Cir.1992) (trial court could not consider new bases for downward departure where remand was limited to resentencing within ap......
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West v. U.S., 94-2462
...other than the question of counsel's performance at sentencing, given our explicit instructions on remand. See United States v. Prestemon, 953 F.2d 1089, 1090 (8th Cir. 1992) (district court's task on remand defined by mandate of appellate court). We need not address the issue raised in Wes......