United States of America v. Gary E. Sutton

United States Court of Appeals
For the Eighth Circuit
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No. 23-3650
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United States of America
Plaintiff - Appellee
v.
Gary E. Sutton
Defendant - Appellant
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No. 23-3661
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United States of America
Plaintiff - Appellee
v.
Gary E. Sutton
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: October 21, 2024
Filed: November 22, 2024
[Unpublished]
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Before COLLOTON, Chief Judge, GRUENDER and KOBES, Circuit Judges.
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PER CURIAM.
In 2006, Gary E. Sutton was convicted of being a felon in possession of a
firearm, 18 U.S.C. §§ 922(g)(1) and 924(e). After applying the Armed Career
Criminal Act (ACCA), the district court sentenced him to 280 months in prison and
five years of supervised release. See United States v. Sutton, 226 F. App’x 638 (8th
Cir. 2007) (per curiam) (affirming conviction and sentence). In 2019, the district
court granted Sutton’s petition for a writ of habeas corpus, concluding that the
ACCA no longer applied. Sutton v. Quintana, No. 1:18-CV-00183, 2019 WL
1746144 (E.D. Mo. Apr. 18, 2019). Sutton was re-sentenced to time served and
three years of supervised release.
While on supervision, Sutton possessed with intent to distribute 50 grams or
more of methamphetamine, 21 U.S.C. § 841(a)(1) and (b)(1)(B). The district court1
sentenced him to 63 months in prison, the top of the U.S. Sentencing Guidelines
range, and five years of supervised release. The court also imposed a revocation
sentence of 20 months in prison, varying down from the 37- to 46-month Guidelines
range for the supervised release violation, and ordered that the sentences run
consecutively.
Sutton argues that the district court abused its discretion in ordering
consecutive sentences because it failed to give appropriate weight to his failing
physical health, his age (61), and the excessive time he spent in prison on the felon-
1 The Honorable Matthew T. Schelp, United States District Judge for the
Eastern District of Missouri.

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in-possession conviction before he was granted habeas relief. See United States v.
Valure, 835 F.3d 789, 790 (8th Cir. 2016) (standard of review). According to Sutton,
“any reasonable court would have ordered the sentences to run concurrently had it
actually considered” that he had served a sentence greater than the statutory
maximum on the 2006 felon-in-possession conviction. We disagree.
The district court carefully considered Sutton’s arguments for concurrent
sentences, granting a downward variance on the revocation sentence based on his
health issues. The court also asked several questions to ensure that it understood the
felon-in-possession case’s complicated procedural history, including that the
sentence was legal when imposed and that Sutton was granted habeas relief after the
law changed. While Sutton believes that his mitigating circumstances should have
been given greater weight, “reversal is not appropriate simply because the district
court did not weigh these considerations as [Sutton] prefers.” United States v.
Morrow, 50 F.4th 701, 704 (8th Cir. 2022) (cleaned up). We conclude that the
district court acted within its discretion when it decided to impose consecutive
sentences and that Sutton’s sentence is not substantively unreasonable. See 18
U.S.C. § 3584(a) (multiple terms of imprisonment imposed at the same time “may
run concurrently or consecutively”); U.S.S.G. § 5G1.3 cmt. n.4(C) (recommending
“that the sentence for the instant offense be imposed consecutively to the sentence
imposed for the revocation”); U.S.S.G. § 7B1.3(f) (instructing that the revocation
sentence “shall be ordered to be served consecutively”).
We affirm the district court’s judgments.
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