                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-1391
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                              Richard Angelo McFee

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                          Submitted: September 24, 2018
                            Filed: December 11, 2018
                                  [Unpublished]
                                  ____________

Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.
                           ____________

PER CURIAM.

       Richard Angelo McFee pled guilty to being a felon in possession of a firearm
in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). After this court vacated his
original sentence and remanded the case, the district court1 sentenced McFee to 115

      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
months imprisonment. He appeals, alleging the court wrongfully failed to depart or
vary downward in his sentencing and that his resulting sentence is unreasonable. We
affirm.

       At initial sentencing, the district court found McFee to be an armed career
criminal pursuant to 18 U.S.C. § 924, triggering a United States Sentencing
Guidelines range of 188-235 months imprisonment. Given McFee’s severe Crohn’s
disease, the court granted a downward departure based on his physical condition and
sentenced him to 180 months imprisonment. United States Sentencing Commission,
Guidelines Manual, § 5H1.4. McFee appealed his armed career criminal designation,
and after finding that he lacked the necessary predicate offenses, we vacated the
sentence and remanded. United States v. McFee, 842 F.3d 572, 577 (8th Cir. 2016).
McFee’s revised presentence investigation report recommended a range of 110-120
months imprisonment. At his resentencing hearing, McFee sought another downward
departure or downward variance, contending his physical condition had worsened in
prison. As evidence, he offered multiple medical reports, several of which noted his
noncompliance with his treatment regimen and his aggression towards medical staff.
The district court sentenced McFee to 115 months imprisonment, denying his motion
for a departure or variance by opting for the midpoint of the recommended sentencing
range.

       In reviewing a sentence, we first establish the absence of procedural errors such
as the district court “failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain
the chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). Additionally,
“a district court’s failure to understand its departure authority under the advisory
Guidelines is a type of procedural error.” United States v. Battles, 311 F. App’x 930,
931 (8th Cir. 2009) (per curiam).



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       If the district court’s decision is “procedurally sound,” we consider the
substantive reasonableness of the sentence, weighing the totality of the circumstances
and giving great deference to the district court. See Gall, 552 U.S. at 51-52; United
States v. David, 682 F.3d 1074, 1076-77 (8th Cir. 2012).

         McFee first argues that the district court committed procedural error in denying
his motion for a downward departure. He contends that the “law of the case doctrine”
bound the district court to apply the same downward departure at resentencing as it
had before, citing Pepper v. United States, 562 U.S. 476, 506 (2011). However,
Pepper itself emphasized that “a district court’s ‘original sentencing intent may be
undermined by altering one portion of the calculus . . . .’” Id. at 507 (quoting United
States v. White, 406 F.3d 827, 832 (7th Cir. 2005)). Therefore, “an appellate court
when reversing one part of a defendant’s sentence ‘may vacate the entire sentence .
. . so that, on remand, the trial court can reconfigure the sentencing plan . . . to satisfy
the sentencing factors in 18 U.S.C. § 3553(a).’” Id. (quoting Greenlaw v. United
States, 554 U.S. 237, 253 (2008)). “The discretionary denial of a motion for
downward departure is unreviewable unless the court failed to recognize its authority
to depart.” United States v. Andreano, 417 F.3d 967, 970 (8th Cir. 2005).
Furthermore, “a district court is presumed to be aware” of its ability to depart. United
States v. Riza, 267 F.3d 757, 759 (8th Cir. 2001) (quoting United States v. Walker,
191 F.3d 326, 338 (2d Cir. 1999)).

      We vacated McFee’s original sentence and remanded for resentencing after
finding that he had insufficient predicate offenses to qualify as an armed career
criminal. McFee, 842 F.3d at 577. This left the district court free to reconfigure his
sentencing and exercise its discretion to deny McFee’s second request for a
downward departure. Though the court’s denial was implicit, we presume that it
recognized its authority to depart. Riza, 267 F.3d at 759. Because McFee’s departure
claim is unreviewable, we examine only his claim that the district court’s refusal to



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grant a downward variance resulted in an unreasonable sentence that failed to
properly consider his physical condition.

       We review the substantive reasonableness of a sentence using a “deferential
abuse of discretion standard.” Gall, 552 U.S. at 52. Because the district court
sentenced McFee to a term within the recommended Guidelines range, its decision
is presumptively reasonable. United States v. Barron, 557 F.3d 866, 870 (8th Cir.
2009). However, a district court may abuse its discretion if 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) (en banc) (internal quotation
marks omitted).

       This is not the “unusual case” when a sentence is so unreasonable as to merit
reversal. Id. at 464. The parties fully argued McFee’s medical history and current
condition. In its judgment, the district court specifically recommended to the Bureau
of Prisons that McFee be designated to a federal medical center. Accordingly, the
district court did consider McFee’s medical status. Considering the seriousness of the
offense and McFee’s lengthy criminal history, we find no abuse of discretion in the
district court’s imposition of a mid-range sentence. Additionally, it is worth noting
that McFee’s condition did not prevent him from committing crimes; he was wearing
a colostomy bag when he shot multiple rounds into the victims’ home. There is no
evidence that imposing a 115-month sentence is an abuse of discretion in light of
McFee’s Crohn’s disease.

      Therefore, the district court did not commit procedural error or impose a
substantively unreasonable sentence, and we affirm.
                      ______________________________



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