               United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 18-1630
                      ___________________________

                          United States of America

                       llllllllllllllllllPlaintiff - Appellee

                                        v.

                               Eddie David Cox

                    lllllllllllllllllllllDefendant - Appellant
                                    ____________

                   Appeal from United States District Court
              for the Western District of Missouri - Kansas City
                               ____________

                       Submitted: November 14, 2018
                          Filed: March 25, 2019
                               [Unpublished]
                              ____________

Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
                          ____________

PER CURIAM.
        Following Eddie Cox’s conviction on twelve counts, the United States District
Court for the Western District of Missouri1 (“Western District”) sentenced him to life
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 that Cox 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


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

                                         -2-
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 as it 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 as to 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

                                          -3-
Central District’s order said that the Western District should 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 corrects that judgment.” Id. Thus, the
Western District did not violate the Double Jeopardy Clause 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 as the “repetitive nature”
of his offenses. The court also commented on Cox’s “lack of willingness to reform
[his] conduct upon sentence after sentence.”



                                         -4-
       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 original sentencing 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,

                                          -5-
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.

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

                                         -6-
       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 willingness to 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.3 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
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

                                          -7-
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 as substantively 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.
                         ______________________________



(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.

                                          -8-
