United States v. Gatewood ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 27, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-3048
v. D. Kansas
STEV EN JO E G A TEWO O D , (D.C. No. 02-CR-40117-JAR)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, A ND ER SO N, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties' request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
Steven Joe Gatewood pled guilty to possession of a firearm after having
been convicted of a felony in violation of 18 U.S.C. § 922(g). He was sentenced
to a 97 month term of imprisonment to be followed by 3 years of supervised
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
release. Gatewood appealed from his sentence. W e affirmed, concluding he was
not entitled to a reduction for acceptance of responsibility; his offense level
enhancem ent for possession of three or more firearms was proper; and his offense
level enhancement for possession of a firearm in relation to another offense was
also proper. See United States v. Gatewood, 370 F.3d 1055 (10th Cir. 2004),
vacated, 453 U.S. 1109 (2005). On petition for certiorari, the Supreme Court
vacated our judgment and remanded the case for further consideration in light of
United States v. Booker, 543 U.S. 220 (2005). The Supreme Court did not
otherw ise reach the merits of the case. W e remanded the case for resentencing.
See United States v. Gatewood, 132 Fed. Appx. 778, 779 (10th Cir. 2005). At
that time, he renewed his objections regarding the district court’s refusal to apply
a reduction for acceptance of responsibility and regarding the sentence
enhancements. Nonetheless, considering the sentencing guidelines as only
advisory the district court imposed a sentence identical to Gatewood’s initial
sentence. This appeal followed.
I. Background
The facts of this case are set forth in our earlier opinion and need only be
summarized here. Arriving at Gatewood’s home in answer to a 911 call, law
enforcement officers discovered the two-year old child of Gatewood’s girlfriend
had died from a self-inflicted gunshot wound. A Glock 9mm semi-automatic
pistol was found on the floor next to the child and an empty gun safe in the
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bedroom was open with the key in the lock. Additional firearms w ere found in
other locations and an anhydrous ammonia tank was also found in a shed behind
the residence.
After offering several shifting versions of the circumstances, Gatew ood’s
girlfriend eventually admitted she purchased the gun for Gatewood and her
previous statements were stories concocted with Gatewood. She also told police
she had received methamphetamine from Gatew ood just two or three days before
the shooting. Officers later learned five other people, including a
“methamphetamine cook,” were at the residence in the early morning of the
shooting. Several people made statements to investigators regarding Gatew ood’s
possession of guns and drug use. Based on the evidence of Gatewood’s continued
drug use and false statements, we concluded the district court did not err in
determining Gatewood failed to take adequate responsibility for his offenses. Id.
at 1062-63. W e also concluded the record adequately supported the district
court’s sentence enhancements. Id. at 1064-65.
II. Discussion
W e review sentences imposed under the advisory guidelines utilizing a
tw o-step approach. United States v. Hernandez-Castillo, 449 F.3d 1127, 1129
(10th Cir. 2006), cert. denied, 127 S.Ct. 936 (2007). “First, we consider whether
the district court properly applied the Guidelines at Step 1, reviewing its legal
determinations de novo and its factual findings for clear error.” Id. “Only if we
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conclude that the district court correctly applied the G uidelines or that any errors
were harmless, do we consider whether the ultimate sentence imposed in Step 2
was reasonable, applying a presumption of reasonableness to sentences falling
within the Guidelines range.” Id. at 1129-30. On appeal, Gatewood raises the
same arguments we addressed on his first challenge to his sentence. The
government contends these issues are barred by the “law of the case” doctrine.
W e agree.
“The law of the case doctrine ‘posits that when a court decides upon a rule
of law, that decision should continue to govern the same issues in subsequent
stages in the same case.’” Roth v. Green, 466 F.3d 1179, 1187 (10th Cir. 2006)
(citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988)).
“W hen a case is appealed and remanded, the decision of the appellate court
establishes the law of the case and ordinarily will be followed by both the trial
court on remand and the appellate court in any subsequent appeal.” Rohrbaugh v.
Celotex Corp., 53 F.3d 1181, 1183 (10th Cir.1995). On remand, the district court
was ordered to reconsider Gatewood’s sentence in the light of Booker. All fact
issues and all other law issues, including our previous decision regarding the
district court’s correct application of the guideline methodology were unaffected
by the Supreme Court’s remand. They stand as the law of this case. The only task
for the district court on remand w as to reconsider the sentence by applying the
§3553(a) factors and considering the guidelines advisory only.
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Gatew ood argues his sentence is unreasonable, suggesting the district court
abused its discretion “based on the unfortunate fact that a [two]-year-old child
obtained access to the firearm, and killed himself.” (Appellant’s Br. at 19.) W e
have jurisdiction to review the reasonableness of any sentence, United States v.
Fonseca, 473 F.3d 1109, 1112 (10th Cir. 2007), and that is our sole inquiry in this
appeal. See also United States v. Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir.
2006) (“[W ]hile we do not have jurisdiction to review the district court's
discretionary decision to deny a downward departure, we have jurisdiction
post-Booker to review the sentence imposed for reasonableness.”).
Gatewood argues the district court’s reaction to a child’s death led to an
unreasonable sentence, citing to the district court’s following statement at his
original sentence:
This defendant engaged in conduct that was not only criminal, but
reckless and had very tragic and dire circumstances. That conduct
has been taken into account in part in various enhancements that
were given to him for having firearms in the house.
(Appellant’s Br. at 19). The record clearly reflects, however, on remand the
district court specifically considered and applied the § 3553(a) factors, stating:
The Court has given consideration to [the] plea agreement, has given
consideration to a true and accurate and appropriate application of
the Guidelines, but has also given consideration to the 18 U.S.C. §
3553(a) factors in determining and concluding that a 97-month
imprisonment term promotes respect for the law, provides just
punishment for the offense, affords adequate deterrence to criminal
conduct, and protects the public from further crimes of the defendant,
and provides the defendant with the necessary treatment to address
his substance abuse problems.
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(Vol. 2 at 19). It sentenced Gatewood within the guideline range and, as
previously determined, the enhancements were supported by the evidence. A
sentence within the guidelines is presumptively reasonable. United States v.
M artinez-Trujillo, 468 F.3d 1266, 1269 (10 th Cir. 2006) (citing United States v.
Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006) (“If . . . the district court properly
considers the relevant Guidelines range and sentences the defendant within that
range, the sentence is presumptively reasonable.”)). Gatewood failed to rebut the
presumption of reasonableness.
A FFIR ME D.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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