United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2933
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Rickey Bates, *
*
Appellant. *
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Submitted: April 13, 2010
Filed: July 26, 2010
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Before LOKEN, HANSEN, and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.
This is Rickey Bates's second appeal to our court. In December 2007, a jury
convicted Bates of being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). Bates had been arrested with .38 grams of cocaine base on his person,
and the district court applied an enhancement pursuant to United States Sentencing
Guideline § 2K2.1(b)(6) for possession of the firearm "in connection with another
felony offense." The court imposed a 110-month sentence and Bates appealed. We
reversed and remanded as to the application of § 2K2.1(b)(6). United States v. Bates,
561 F.3d 754, 759 (8th Cir. 2009) ("Bates I"). On remand, the district court1
reimposed the 110-month sentence, again finding § 2K2.1(b)(6) applicable. Bates
appeals after resentencing.2 We affirm.
I. Background
At approximately 12:30 a.m. on December 8, 2006, law enforcement officers
observed a stolen vehicle with two passengers driving on a street in St. Louis. Police
later identified Bates as the passenger in the vehicle. The officers surveilled the
vehicle while waiting for backup. After the vehicle stopped at a house, two officers
activated their emergency lights and drove up behind it. The vehicle drove off and
subsequently ran over a set of spike strips placed in the vicinity. The driver lost
control several blocks later and both occupants jumped out of the vehicle. After a foot
pursuit, an officer subdued Bates and discovered a loaded pistol in his waistband. A
subsequent search uncovered .38 grams of cocaine base, i.e. crack cocaine, in a plastic
baggie in Bates's coat pocket. A jury convicted Bates of being a felon in possession
of a firearm.
1
The Honorable Catherine D. Perry, Chief Judge for the United States District
Court for the Eastern District of Missouri.
2
In addition to the sentencing appeal submitted through counsel, Bates has filed
a pro se supplemental brief challenging his felon-in-possession conviction.
Specifically, Bates argues that one of the jurors allegedly "evaded questioning" during
voir dire, denying Bates the opportunity to determine if the juror harbored any biases
against him. Bates did not raise this issue or otherwise challenge his conviction in his
first appeal. We will not entertain his arguments now on his second appeal following
our limited remand for resentencing. See United States v. Kress, 58 F.3d 370, 373
(8th Cir. 1995) (issue that could have been raised in first appeal but was not was
waived); United States v. Long, 88 F. App'x 150, 152 (8th Cir. 2004) (unpublished
per curiam) (holding defendant could not challenge conviction after remand for
resentencing).
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Bates's presentence report ("PSR") recommended the four-level enhancement
pursuant to § 2K2.1(b)(6). The district court overruled Bate's objection and applied
the enhancement, seemingly accepting the government's argument that the firearm and
drugs were connected because both were found on Bates's person. Bates maintained
in his first appeal that the district court erred in applying § 2K2.1(b)(6) because it had
not found an adequate connection between the gun and the drugs under recent circuit
precedent. He argued that under the new approach, finding guns and drugs in the
same location triggered the adjustment only when the underlying felony is drug
trafficking, and pointed out that there had been no allegations that he was involved in
drug dealing. Instead, if the defendant was caught possessing only a "user" quantity
of drugs, as he was, he asserted the court must make an affirmative finding that the
gun facilitated the offense. The government countered that the district court made a
sufficient implicit finding that the weapon facilitated Bates's drug possession, or
alternatively, that any error was harmless. Considering these arguments, we noted
in Bates I that the parties agreed Bates possessed a user quantity of drugs and that the
district court had failed to affirmatively find the gun facilitated what we described to
be the "drug-possession offense." 561 F.3d at 758–59. We reversed, citing United
States v. Blankenship, 552 F.3d 703 (8th Cir. 2009), and remanded for "further
proceedings to allow the district court to make appropriate findings regarding §
2K2.1(b)(6)'s applicability." Id. at 759.
Appearing pro se with standby counsel, Bates testified and called as witnesses
the two arresting officers at his resentencing hearing. He sought to relitigate the events
surrounding his arrest. As most relevant here, he denied possessing the gun, claimed
he was not aware of any drugs being seized, and argued there was no evidence he sold
or attempted to sell drugs or otherwise used the gun to facilitate possession of the
drugs. On cross examination, he stated that he had gotten out at the house to talk to
a friend and denied engaging in a drug deal. He further denied ever using crack
cocaine. Bates acknowledged, however, a prior conviction for selling .29 grams of
crack cocaine and another conviction for possession of crack cocaine. Detective Drew
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Werninger testified that the house where the car had stopped was a "known drug
house" and confirmed on cross examination that the block served as a kind of open air
street market for drugs. Bates objected to this testimony, arguing that it had not been
evidence at trial. Werninger also testified that the vehicle was idling at the curb in a
manner that would have raised suspicion that its occupants were engaged in drug
sales. Although Werninger did not see Bates engage in a drug transaction, he believed
Bates "most likely [got out of the car] to conduct a hand-to-hand transaction of
narcotics sales." Detective Marquis Wren confirmed that the block "is a heavy drug
neighborhood" with considerable foot traffic and testified that he also observed Bates
reenter the vehicle before the pursuit ensued. Bates argued that the detectives lacked
credibility because of inconsistencies in their paperwork as to where the foot pursuit
and arrest took place.
Based on the hearing testimony, the government argued that § 2K2.1(b)(6) was
applicable because Bates's possessed the weapon while engaging in a drug-trafficking
crime, namely possession of crack cocaine with the intent to distribute, giving rise to
a presumption of a connection between the two crimes. Alternatively, the
government argued that the gun facilitated simple possession of the drugs. The
district court again found the § 2K2.1(b)(6) enhancement warranted. The court noted
some of the government's arguments concerning the evidence presented at trial
showed the gun facilitated a simple possession offense, but went on to state in part
that
[i]t might be that those would be sufficient if I had to decide this case on
that basis. I think I would find that they were sufficient. However, I
don't have to decide this case on that basis because the defendant's own
testimony has established that this was not mere possession of the drugs.
The testimony and all the evidence that I've heard today and the evidence
at trial convinces me beyond a reasonable doubt that the defendant
possessed this crack cocaine with the intent to distribute it, and therefore
it was a drug trafficking offense, and so the four-level enhancement
applies if [the gun and drugs] were simply in near proximity[.]
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After considering the 18 U.S.C. § 3553(a) factors, the district court reimposed the
110-month sentence. Bates argues in the instant appeal that the law of the case
prohibited the district court from finding that he was engaged in drug trafficking and
that, in any case, there was insufficient evidence of drug trafficking.
II. Discussion
The district court's determination that a defendant possessed a firearm in
connection with another felony for purposes of § 2K2.1(b)(6) is a factual finding that
we review for clear error. United States v. Smith, 535 F.3d 883, 885 (8th Cir. 2008).
As we recently explained regarding the applicability of § 2K2.1(b)(6),
If the felony is for drug trafficking, Application Note 14(B) mandates
application of the adjustment if guns and drugs are in the same location.
If the underlying drug offense is for simple possession, the district court
may still apply the adjustment, but only after making a finding that the
firearm facilitated the drug offense. In other words, when the defendant
subject to a 2K2.1(b)(6) adjustment possesses a “user” amount of drugs
and is not a trafficker, instead of automatically applying the adjustment
when both drugs and weapons are involved in the offense, the district
court must affirmatively make a finding that the weapon or weapons
facilitated the drug offense before applying the adjustment.
United States v. Butler, 594 F.3d 955, 966 (8th Cir. 2010) (internal quotations and
citations omitted). "Absent a plea, a conviction or an allegation with sufficient
supporting evidence of drug trafficking, [the defendant's] applicable underlying drug
offense is possession." United States v. Mansfield, 560 F.3d 885, 888 (8th Cir. 2009).
Bates argues that under the law-of-the-case doctrine, "the District Court's
finding that Bates had intended to distribute the drugs was foreclosed by this Court's
finding that Bates's other felony offense involved possessing only a user quantity of
drugs." "On remand for resentencing, all issues decided by the appellate court become
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the law of the case, and the sentencing court is bound to proceed within the scope of
any limitations imposed . . . by the appellate court." United States v. Curtis, 336 F.3d
at 666, 669 (8th Cir. 2003) (internal quotation and citation omitted). The law-of-the-
case doctrine prevents "the relitigation of settled issues in a case, thus protecting the
settled expectations of parties, ensuring uniformity of decisions, and promoting
judicial efficiency." First Union Nat'l Bank v. Pictet Overseas Trust Corp., Ltd., 477
F.3d 616, 620 (8th Cir. 2007) (internal quotation and citation omitted). It applies,
however, "only to issues actually decided, either implicitly or explicitly, in the prior
stages of a case." Roth v. Sawyer-Cleator Lumber Co., 61 F.3d 599, 602 (8th Cir.
1995).
Bates's argument fails because we made no "finding" on the amount of drugs
or the type of drug activity in which he was engaged. Our prior opinion simply noted
the parties's agreement as to the facts. We were not asked to nor did we consider
whether the evidence showed Bates possessed the user quantity with the intent to
distribute it. In fact, whether Bates engaged in drug trafficking became an issue in the
case for the first time during the proceedings on remand. Therefore, our description
of the case as involving a "user quantity" and "drug possession" did not create the law
of the case where the parties presented no controversy as to those questions for our
court to consider and decide. See United States v. Montoya, 979 F.2d 136, 138 (8th
Cir. 1992) (a statement in prior panel opinion was not the law of the case where the
court was considering and deciding a different issue). Furthermore, Bates does not
now argue that the government waived an argument based on trafficking for failing
to present it earlier.
Additionally, our mandate did not foreclose further consideration of the nature
of Bates's drug activity. On remand, we may provide instructions limiting the scope
of the district court's discretion or we may remand without limitations. United States
v. Kendall, 475 F.3d 961, 964 (8th Cir. 2007). We may, for example, remand with
instructions to resentence based on the existing record. United States v. Dunlap, 452
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F.3d 747, 749 (8th Cir. 2006). Here, we restricted the court's consideration to
deciding the applicability of § 2K2.1(b)(6). We did not, however, remand with
instructions to resentence based on the trial evidence. Rather, we expressly directed
the court to conduct the proceedings necessary to make the appropriate findings. The
district court could therefore receive and consider any evidence relevant to
§ 2K2.1(b)(6) that it could have heard initially without violating our mandate. See
Kendall, 475 F.3d at 964. Bates urged the district court to reopen the record and
conduct an evidentiary hearing, and the district court did not abuse its discretion in
doing so. See United States v. Castellanos, No. 09-1456, 2010 WL 2606332, at *4
(8th Cir. July 1, 2010) (standard of review for court's decision to hold evidentiary
hearing).
Alternatively, Bates asserts that there was insufficient evidence of trafficking.
We disagree. He emphasizes the small quantity of drugs and the lack of evidence that
he was involved in large-scale and/or well-established distribution activities, such as
significant amounts of cash, sales records, distribution paraphernalia, or the existence
of a drug conspiracy or scheme. We have frequently considered such evidence
significant when considering whether a conviction for possession with intent to
distribute is supported by sufficient evidence. See, e.g., United States v. Thomas, 593
F.3d 752, 760 (8th Cir. 2010); United States v. Blakey, 449 F.3d 866, 869–70 (8th Cir.
2006). The government, however, has to prove the facts supporting the sentencing
enhancement only by a preponderance of the evidence. United States v. Betts, 509
F.3d 441, 445 (8th Cir. 2007). The district court could and did admit Bates's past
conviction for distributing a user quantity as evidence of motive, intent, or knowledge
of what he planned to do with the drugs. See United States v. Drapeau, 414 F.3d 869,
875 (8th Cir. 2005). As Bates's criminal history makes clear, his possession of merely
a user quantity does not foreclose the possibility that he intended to distribute it.
Additionally, as the district court observed, Bates's denial that he ever used crack
cocaine, coupled with evidence introduced at trial that he possessed it, gave rise to an
inference that he intended to distribute it. See Thomas v. United States, 501 F.2d
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1169, 1173 (8th Cir. 1974). The court was entitled to believe that he was not a user
of crack cocaine, while disbelieving other portions of his testimony. See United States
v. Candie, 974 F.2d 61, 65 (8th Cir. 1992) ("Like any other factfinder who assesses
witness credibility, the sentencing judge is free to believe all, some, or none of a
witness's testimony."). Finally, the officers' testimony established Bates's presence
at a house and on a street known for drug trafficking, and Werninger testified that the
behavior of the car's driver and Bates was consistent with drug trafficking.
We find no error in the court's determination that Bates engaged in drug
trafficking. The court properly applied § 2K2.1(b)(6) pursuant to Application Note
14(B). For the foregoing reasons, we affirm the judgment of the district court.
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