                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-3665
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                    Victor Vickers

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

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

                               Submitted: April 7, 2017
                                 Filed: May 3, 2017
                                   [Unpublished]
                                  ____________

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

PER CURIAM.

       After a jury convicted Victor Vickers of conspiracy to distribute marijuana the
district court sentenced him to the statutory maximum of 60 months imprisonment.
Vickers appealed. We affirmed his conviction, but vacated his sentence and
remanded for resentencing due to an error in the district court's application of the
sentencing guidelines. See United States v. Taylor, 813 F.3d 1139, 1151 (8th Cir.
2016). On remand the district court1 again sentenced Vickers to 60 months
imprisonment. Vickers appeals, and we affirm.

                                          I.

       In September 2014 a jury convicted Vickers of conspiracy to distribute less
than 100 kilograms of marijuana. Prior to sentencing the probation office prepared
a presentence investigation report that indicated that Vickers was facing charges in
state court for allegedly participating in the murder of a man named Edward Ewing.
At his sentencing proceeding the government called an officer who had investigated
the murder to testify and also introduced a videotaped interview of Ewing's girlfriend,
who had been present during the murder. On the basis of this evidence the district
court found that Vickers had participated in the murder and concluded that the murder
was "drug-related activity" that warranted the application of the murder cross
reference in the guidelines section for drug related offense conduct. See U.S.S.G.
§ 2D1.1(d)(1). The application of the murder cross reference increased Vickers' base
offense level from 12 to 43. The district court sentenced Vickers to the statutory
maximum of 60 months imprisonment.

      Vickers appealed. We affirmed his conviction but concluded that the district
court erred when it applied the murder cross reference at Vickers' sentencing. See
Taylor, 813 F.3d at 1150–51. We thus "vacate[d] his sentence and remand[ed] his
case for resentencing." Id. at 1151. After our mandate issued but before Vickers'
resentencing hearing, he was convicted in state court of the Ewing murder. Although
the district court heeded our directive that the murder cross reference was
inapplicable, the court considered Vickers' involvement in the Ewing murder in
resentencing him. Vickers was again sentenced to 60 months imprisonment. Vickers


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

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appeals, arguing that the district court erred in considering the Ewing murder at his
resentencing proceeding and contending that his sentence is substantively
unreasonable.

                                           II.

        We review the sentence imposed by a district court for abuse of discretion and
proceed "in two steps: first, we review for significant procedural error; and second
. . . we review for substantive reasonableness." United States v. O'Connor, 567 F.3d
395, 397 (8th Cir. 2009). Procedural errors include "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—including an
explanation for any deviation from the Guidelines range." Gall v. United States, 552
U.S. 38, 51 (2007). A district court may impose a substantively unreasonable
sentence if it "fails to consider a relevant factor that should have received significant
weight; gives significant weight to an improper or irrelevant factor; or considers only
the appropriate factors but commits a clear error of judgment." O'Connor, 567 F.3d
at 397 (quoting United States v. Saddler, 538 F.3d 879, 890 (8th Cir. 2008)).

                                           A.

       Vickers first contends that the district court committed procedural error when
resentencing him. His sole argument in this regard is that the district court erred by
taking his conviction for the murder of Edward Ewing into account when weighing
the factors outlined in 18 U.S.C. § 3553(a) and crafting his sentence.2 Vickers argues

      2
        Notably, Vickers does not argue that the district court committed procedural
error by failing adequately to explain its chosen sentence. See United States v.
Wearing, 837 F.3d 905, 910 n.6 (8th Cir. 2016) (per curiam) (arguments not
sufficiently developed in opening brief are deemed waived).

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that any consideration of the Ewing murder should have been barred by our mandate
in his prior appeal which he construes as ordering the court to sentence him "on the
record already before the Court, less the Ewing murder." Vickers also contends that
his conviction for the Ewing murder, which happened after our mandate was issued
but before his resentencing, amounted to "new evidence" that should not have been
introduced or considered.3

       We disagree with Vickers' construction of the scope of our mandate. In our
opinion on his prior appeal, we concluded simply that the fact that the district court
applied the murder cross reference when sentencing him was error and "therefore
vacate[d] his sentence and remand[ed] his case for resentencing." Taylor, 813 F.3d
at 1151. In other words, our opinion directed the district court to resentence Vickers
without applying the murder cross reference but placed no other "limitations on the
discretion of the . . . district court judge." See Pepper v. United States, 562 U.S. 476,
506 (2011) (internal quotation marks omitted). Our remand was thus a general one
that contemplated resentencing de novo. See United States v. Bates, 614 F.3d 490,
494 (8th Cir. 2010) ("On remand, we may provide instructions limiting the scope of
the district court's discretion or we may remand without limitations."). The district
court adhered to our instructions by declining to apply the murder cross reference at
resentencing.

     Having determined that the district court's consideration of the Ewing murder
was not barred by our prior mandate, we next address the question of whether


      3
         Neither before the district court nor on appeal has Vickers argued that his
conviction for the Ewing murder should not have been used when calculating his
criminal history under the guidelines; his only objection is to the district court's use
of that conduct when weighing the § 3553(a) sentencing factors. Since the issue is
not before us, we express no opinion as to whether the district court erred by using
the Ewing conviction in its calculation of Vickers' criminal history. See Wearing,
837 F.3d at 910 n.6.

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evidence of Vickers' involvement in the murder could properly be considered outside
the context of the murder cross reference provision of the guidelines. We conclude
that it could. When we remand a case for resentencing de novo, a district court is
"permitted to consider any relevant evidence that it could have received at [the
defendant's] first sentencing hearing." United States v. Reid, 827 F.3d 797, 801 (8th
Cir. 2016). In this case the district court not only could have, but did, receive
evidence related to the Ewing murder at Vickers' first sentencing hearing. This
evidence included testimony from an officer who had investigated the murder and a
videotaped interview of the victim's girlfriend who had been present during the
murder. Vickers also presented testimony from an attorney who had represented him
in connection with the state murder charges and who believed in Vickers' innocence.
At the conclusion of the evidence, the district court found that Vickers was involved
in the murder.

       Although the district court erred in using this finding to apply the murder cross
reference at Vickers' first sentencing, nothing would have precluded it from
determining at that proceeding that the Ewing murder was relevant to its weighing of
the § 3553(a) sentencing factors. We have repeatedly held that "prior criminal
conduct, whether or not related to the offense of conviction, . . . is part of 'the history
and characteristics of the defendant' that the court 'shall consider' in imposing an
appropriate sentence, 18 U.S.C. § 3553(a)(1), and it may be relevant in a particular
case to the factors enumerated in § 3553(a)(2)." United States v. Loaiza-Sanchez,
622 F.3d 939, 942 (8th Cir. 2010). Such criminal conduct may be considered
regardless of whether the defendant has been charged or convicted for that conduct.
At sentencing, the district court need only find by a preponderance of the evidence
that the defendant committed the crime at issue for the conduct properly to be
considered in connection with the court's analysis of the broad and inclusive
§ 3553(a) factors. See United States v. Waller, 689 F.3d 947, 960 (8th Cir. 2012) (per
curiam). Since the district court could have found that Vickers was involved in the
Ewing murder and properly considered that conduct when weighing the § 3553(a)

                                           -5-
factors at his first sentencing, it did not commit procedural error when it did so at his
resentencing. See Reid, 827 F.3d at 801; see also United States v. Tidwell, 827 F.3d
761, 764 (8th Cir. 2016) (noting that a conviction that occurred between a sentencing
and a resentencing could provide grounds for an increased sentence).

                                           B.

       Vickers also argues that his sentence is substantively unreasonable. He
advances multiple arguments in support of this allegation. First, he argues that his
involvement in the Ewing murder was an "improper or irrelevant factor," O'Connor,
567 F.3d at 397, to which the district court gave significant weight. As discussed at
length above, however, we conclude that the district court could properly consider the
Ewing murder in connection with its weighing of the § 3553(a) factors. See United
States v. Richart, 662 F.3d 1037, 1052 (8th Cir. 2011). The court's consideration of
the Ewing murder in crafting Vickers' sentence therefore does not render his sentence
substantively unreasonable.

       Vickers also argues that his sentence is substantively unreasonable because it
is greater than necessary to satisfy the § 3553(a) factors and is disparate from the
sentences given similarly situated defendants. After careful review, we conclude that
these arguments fail to establish that the district court abused its discretion in
sentencing Vickers. District courts have an "'institutional advantage' in finding facts
and judging their import under § 3553(a)" that entitles their sentencing decisions to
considerable deference. Richart, 662 F.3d at 1055. We are not permitted to "set aside
a sentence merely because we would have decided that another one is more
appropriate." Id. at 1054 (quoting United States v. Irey, 612 F.3d 1160, 1191 (11th
Cir. 2010) (en banc)). At Vickers' resentencing the district court recited the relevant
§ 3553(a) factors and informed Vickers that it was imposing the maximum sentence
allowed by statute because Vickers "led a very destructive life that was very much a
danger to the community as evidenced by" his involvement in the drug conspiracy

                                          -6-
and the Ewing murder. We cannot say that this determination, or the sentence
imposed in reliance on it, was an abuse of the court's discretion. Indeed, we have
previously upheld similar sentencing decisions in comparable cases. See, e.g., id. at
1053; see also United States v. Roberson, 334 F. App'x 787, 789–90 (8th Cir. 2009)
(per curiam) (unpublished).

                                        III.

      Accordingly, we affirm the judgment of the district court.

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