United States v. Keat Wingate ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4593
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEAT SHAUN WINGATE,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Margaret B. Seymour, Senior District Judge. (3:03-cr-00015-MBS-1)
Submitted: January 26, 2023 Decided: February 13, 2023
Before KING and HEYTENS, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Henry M. Anderson, Jr., ANDERSON LAW FIRM, PA, Florence, South
Carolina; Andrew Mackenzie, BARRETT MACKENZIE, LLC, Greenville, South
Carolina, for Appellant. Corey F. Ellis, United States Attorney, Katherine Hollingsworth
Flynn, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Keat Shaun Wingate appeals the district court’s sentence of 51 months’
imprisonment followed by 2 years of supervised release imposed upon revocation of his
prior term of supervised release. 1 Wingate argues on appeal that the district court abused
its discretion in designating him as a career offender with a corresponding criminal history
category of VI when imposing his revocation sentence. 2 Specifically, Wingate asserts that
the law of the case is that he is not a career offender based on our 2005 decision to vacate
his sentence and remand to the district court and the district court’s second resentencing.
We affirm.
This Court reviews a district court’s revocation of supervised release for abuse of
discretion, evaluating the district court’s legal conclusions de novo and its factual findings
for clear error. United States v. Patterson, 957 F.3d 426, 435 (4th Cir. 2020).
Generally, 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. Those stages include a subsequent
appeal in the same litigation. As such, once the decision of our Court
1
Although Wingate has been released from incarceration, his appeal is not moot
because he is currently serving his two-year term of supervised release. See United States
v. Ketter, 908 F.3d 61, 66 (4th Cir. 2018) (holding that defendant’s appeal of term of
incarceration is not rendered moot by his release when he is still serving supervised release
term).
2
At the revocation hearing, the district court determined that Wingate’s policy
statement range was 51 to 60 months’ imprisonment based upon a Grade A violation and
a criminal history category of VI. Neither party objected. Wingate observes on appeal
that, without the career offender enhancement, his criminal history category would be III
and, combined with a Class A felony supervised release violation, his policy statement
range would be 30 to 37 months’ imprisonment. See U.S. Sentencing Guidelines Manual
§ 7B1.4(a), p.s., n.1 (2018).
2
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establishes the law of the case, we adhere to that decision in subsequent
appellate rulings unless: (1) a subsequent trial produces substantially
different evidence, (2) controlling authority has since made a contrary
decision of law applicable to the issue, or (3) the prior decision was clearly
erroneous and would work manifest injustice.
Fusaro v. Howard, 19 F.4th 357, 367 (4th Cir. 2021) (cleaned up). For revocation
purposes, “[t]he criminal history category to be used in determining the applicable range
of imprisonment in the Revocation Table is the category determined at the time the
defendant originally was sentenced to the term of supervision.” USSG § 7B1.4(a), p.s.,
n.1.
Upon careful review of the record, we conclude that our 2005 decision did not state
that Wingate was not a career offender. See United States v. Wingate, 153 F. App’x 197,
198-99 (4th Cir. 2005) (No. 04-4540). We simply required the district court in sentencing
Wingate on remand to comply with the holdings of United States v. Booker, 543 U.S. 220,
244 (2005) (holding that mandatory Sentencing Guidelines scheme that provided for
sentence enhancements based on facts found by district court by a preponderance of the
evidence violated Sixth Amendment), and United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005) (holding that sentence imposed under pre-Booker mandatory sentencing scheme
and enhanced based on facts found by district court, not by jury (or, in guilty plea case, not
admitted to by defendant), constitutes plain error that affects defendant’s substantial rights
and warrants reversal under Booker when record does not disclose what discretionary
sentence court would have imposed under advisory Guidelines scheme). See id. at 198-99.
Moreover, the district court’s second resentencing of Wingate to 240 months’
imprisonment—the enhanced statutory mandatory minimum—did not address whether or
3
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not Wingate was a career offender, and Wingate’s counsel appeared to recognize that the
advisory Guidelines range reflected a career offender enhancement. (See J.A. 184). 3 This
Court affirmed the sentence, again not making any findings as to Wingate’s career offender
status. See United States v. Wingate, No. 07-4282, 2007 WL 3083111, at *1 (4th Cir. Oct.
23, 2007).
Finally, none of the exceptions to the law of the case doctrine apply here: (1) there
was no subsequent trial producing substantially different evidence; (2) there is no
subsequent contrary controlling authority; and (3) the prior determination was not clearly
erroneous. See Fusaro, 19 F.4th at 367. Thus, under the law of the case doctrine, the
district court did not err in applying the career offender criminal history category VI at
Wingate’s revocation. See Graves v. Lioi, 930 F.3d 307, 318 (4th Cir. 2019) (“The law-
of-the-case doctrine recognizes 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.” (internal
quotation marks omitted)).
Accordingly, we affirm the revocation judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
3
“J.A.” refers to the joint appendix.
4