Louis Jimerson v. Raymond M. Meyer

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-3793
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of South Dakota.
*
Phillip D. Banks, * [PUBLISHED]
*
Appellant. *
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Submitted: June 10, 2003
Filed: August 25, 2003
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Before BOWMAN, BEAM, and BYE, Circuit Judges.
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PER CURIAM.
Phillip D. Banks appeals his sentence following our remand of this case for
resentencing. Previously, in United States v. Bradford, 246 F.3d 1107, 1111-12, 1115
(8th Cir. 2001), we affirmed Banks's jury convictions for conspiracy to distribute a
controlled substance and distribution of a controlled substance, but remanded the case
to the District Court for resentencing in light of the Supreme Court's decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000). At Banks's initial sentencing, the
District Court imposed a mandatory minimum sentence of twenty years as required
by 21 U.S.C. 841(b)(1)(A) (2000). We vacated that sentencing determination
because, in violation of Apprendi, "no drug quantity was specified in the indictment

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1 The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
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or proven at trial." Bradford, 246 F.3d at 1115. On remand, the District Court,1 using
the guideline sentencing range established at Banks's initial sentencing, sentenced
Banks to 132 months of imprisonment. We affirm.
Banks advances a hodgepodge of frivolous arguments in support of his claim
that his sentence is unconstitutional, including the contention that "the application of
the sentencing guidelines in conjunction with findings based upon a preponderance
of the evidence results in cruel and unusual punishment." Appellant's Br. at 19. We
have squarely rejected this argument before. United States v. Diaz, 296 F.3d 680, 683
(8th Cir.) (holding that "Apprendi does not forbid a district court from finding the
existence of sentencing factors, including drug quantity, by a preponderance of the
evidence"), cert. denied, 123 S.Ct. 43 (2002). Banks's primary contention appears to
be that he believes his sentence was "greatly disproportionate" to those of equally
culpable co-defendants and that the District Court should have reduced his sentence
accordingly. Appellant's Br. at 20. Even if we assumed Banks could demonstrate
that similarly situated or more culpable offenders received lesser sentences in this
case, we would reject his claim because "disparity between sentences imposed on
codefendants is not a proper basis for departure" from the applicable guideline
sentencing range. United States v. Carrasco, 271 F.3d 765, 768 (8th Cir. 2001)
(internal quotation and citations omitted).
Banks next argues that the District Court erred in calculating the quantity of
drugs attributable to him. Banks maintains that although this issue was presented in
his initial appeal, "it appears that it was not clearly addressed by the Court in its
decision." Appellant's Br. at 24. We disagree. We previously held in Banks's initial
appeal that, with respect to all the defendants, "[t]here was no clear error in the
district court's factual findings," including drug quantities. Bradford, 246 F.3d at

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1112 n.1. As indicated, we remanded this case for resentencing in light of the
Supreme Court's decision in Apprendi. We did not disturb or question the District
Court's factual findings on drug quantity. Accordingly, those findings became the
law of the case. Cf. United States v. Washington, 197 F.3d 1214, 1216 (8th Cir.
1999) (declining to address whether search violated defendant's Fourth Amendment
rights because the Court previously had decided that issue), cert. denied, 531 U.S.
1015 (2000).
For the reasons stated, we affirm Banks's sentence. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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