                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 10-2121
                                    ___________

United States of America,                *
                                         *
             Appellee,                   * Appeal from the United States
                                         * District Court for the
      v.                                 * Northern District of Iowa.
                                         *
Tyrone Sturdivant,                       * [UNPUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: September 30, 2010
                                 Filed: July 8, 2011
                                  ___________

Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
                          ___________

PER CURIAM.

        Following remand for resentencing in United States v. Sturdivant, 513 F.3d 795,
799 (8th Cir. 2008) (Sturdivant I), the district court sentenced Tyrone Sturdivant to
life in prison – the statutory mandatory minimum – on his conviction for conspiring
to manufacture and distribute 50 grams or more of cocaine base and conspiring to
distribute cocaine salt (Count 1). He was also resentenced to concurrent terms of 360
months each on two counts of distributing cocaine powder (Counts 2 and 3).

      On appeal, counsel moves to withdraw and files a brief under Anders v.
California, 386 U.S. 738 (1967), arguing that imposing the statutory mandatory
minimum in 21 U.S.C. § 841(b)(1)(A) (amended Aug. 3, 2010) denied Sturdivant due
process and equal protection because of the crack-to-powder ratio in the statute. The
Anders-brief argument fails. See United States v. Fenner, 600 F.3d 1014, 1024-25
(8th Cir. 2010). This court has reviewed the record independently under Penson v.
Ohio, 488 U.S. 75 (1988), and found no nonfrivolous issues for appeal.

       Sturdivant pro se raises a number of challenges to the hearing held on remand
to address his argument that he was not the person who actually was convicted in two
prior felony convictions that enhanced his sentence on Count 1. Because Sturdivant
raised no identity-based objections at his first sentencing hearing or during the first
appeal, he waived the ability to pursue that argument on remand. See United States
v. Hartstein, 557 F3d 589, 591 (8th Cir. 2009). This court also rejects Sturdivant’s
contention that the mandatory minimum sentence is preempted or overridden by 18
U.S.C. §§ 3551-3559. See United States v. Freemont, 513 F.3d 884, 888-91 (8th Cir.
2008). The Fair Sentencing Act of 2010 does not affect his sentence. See Pub. L. No.
111-220, 124 Stat. 2372 (2010).

       Sturdivant claims the district court erred in admitting certain evidence at his
sentencing hearing, including alleged hearsay testimony of records officers and
irrelevant documentary evidence. The district court did not abuse its wide discretion
in admitting documents and the testimony of the records officers, or clearly err in
finding the facts of the two prior convictions. See United States v. Pratt, 553 F.3d
1165, 1170 (8th Cir. 2009).

       Sturdivant also claims the district court was not impartial and favored the
government by continuing the sentencing hearing, requesting the government paginate
its exhibits, and questioning witnesses. To the contrary, the “average person on the
street who knows all the relevant facts” of this case would not question the district
court’s impartiality. In re Kansas Pub. Emp. Ret. Sys., 85 F.3d 1353, 1358 (8th Cir.
1996). The sentencing judge’s “routine trial administration”did not exhibit bias, and


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none of the judge’s acts rose to the level of advocacy. See Liteky v. United States,
510 U.S.540 , 556 (1994); United States v. Almeida-Perez, 549 F.3d 1162, 1174 (8th
Cir. 2008); United States v. Van Dyke, 14 F.3d 415, 422 (8th Cir. 1994); United States
v. Singer, 710 F.2d 431, 436 (8th Cir. 1983).

       At the original sentencing, the district court imposed a sentence of three
concurrent 348-month terms. The government’s (successful) appeal disputed only the
felony-drug-conviction enhancement to Count 1, authorized by 21 U.S.C. §
841(b)(1)(A)(viii). On remand, the district court, after sentencing Sturdivant to life
in prison on Count 1, proceeded to impose concurrent 360-month terms on Counts 2
and 3. This court’s remand necessarily permitted resentencing only on Count 1. See
United States v. Kendall, 475 F.3d 961, 964 (8th Cir. 2007). The district court erred
in resentencing Sturdivant on Counts 2 and 3, and this court reinstates the original
sentences for those counts: concurrent terms of 348 months in prison on each count.

      This court vacates the sentences imposed on Counts 2 and 3, reinstating the
original concurrent 348-month sentences on those counts. In all other respects, we
affirm. Counsel’s motion to withdraw is granted, and Sturdivant’s pending motions
are denied.
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