United States v. Dennis B. Sather, Jr.

28 F.3d 821, 1994 WL 316438

• Court: Court of Appeals for the Eighth Circuit
• Decided: August 12, 1994
• Docket: 94-1032
• Status: Published

Opinions

PER CURIAM.

Dennis B. Sather Jr. appeals his jury conviction and sentence for possession of ammunition by a felon. See 18 U.S.C. § 922(g)(1) (1988). Having carefully reviewed the record, we conclude the challenged statements the Government made in its closing argument at trial did not affect Sather’s substantial rights resulting in a miscarriage of justice. See United States v. Fuller, 887 F.2d 144, 148 (8th Cir.1989) (plain error standard), cert. denied, 496 U.S. 908, 110 S.Ct. 2592, 110 L.Ed.2d 273 (1990). In addition, we reject Sather’s Eighth Amendment cruel and unusual punishment challenge to the length of his sentence. Because Sather had already been convicted of at least three violent felonies or drug offenses, see 18 U.S.C. § 924(e)(1), the district court properly sentenced Sather as an armed career erimi-nal, U.S.S.G. § 4B1.4(a) (Nov.1993). See United States v. Ailport, 17 F.3d 235, 238 (8th Cir.1994).

Although both Sather and the Government contend this case should be remanded to allow the district court to clarify whether Sather’s federal sentence should run concurrently with or consecutively to several state sentences, including a sentence for violating his state probation terms, we believe a remand is unnecessary. The district court stated that it “specifically does not make [the federal sentence] concurrent with any other sentence.” Because the district court did not consider the conduct supporting the state sentences when it calculated Sather’s offense level, the district court was not required to make Sather’s federal sentence concurrent to his state sentences. See U.S.S.G. § 5G1.3(b); United States v. Washington, 17 F.3d 230, 234 (8th Cir.1994).

Contrary to the Government’s position, Washington does not require a remand for resentencing. In Washington, despite the defendant’s request for a concurrent federal sentence, the district court did not specify whether the defendant’s federal sentence would run concurrently with or consecutively to his state sentences. Because the district court failed to rule on this issue, and under § 5G1.3(b) it was clear the defendant was entitled to a federal sentence concurrent with at least one of his state sentences, the panel remanded the case for resentencing. Washington, 17 F.3d at 234. In this case, however, the district court properly made Sather’s federal sentence consecutive to his state sentences. See U.S.S.G. § 5G1.3(c) & n. 4.

Thus, we affirm.