[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 19, 2006
No. 05-16762 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00017-CR-1-ODE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REGINALD MOLDEN,
a.k.a. Reginald Troutman,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 19, 2006)
Before TJOFLAT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
This is Reginald Molden’s third appearance before this Court. He again
challenges his 110-month sentence for possession of a firearm by a convicted
felon, arguing (1) that the district court erred by enhancing his sentence for
possession of a firearm in connection with another felony offense, pursuant to
U.S.S.G. § 2K2.1(b)(5), and (2) that his 110-month sentence is unreasonable. We
affirm. In 2003, Molden was convicted of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g), and sentenced to 110 months’
imprisonment. On direct appeal, we affirmed his conviction and sentence,
rejecting his sentencing argument that the district court violated the “spirit” of
Apprendi v. New Jersey, 530 U.S. 466 (2000) by imposing a four-level
enhancement, pursuant to U.S.S.G. § 2K2.1(b)(5), based on the court’s finding that
Molden possessed a firearm in connection with another felony offense (an
aggravated assault of a law enforcement officer that occurred in the course of the
crime for which he was convicted). See United States v. Molden, Case No. 03-
15931, 112 Fed. Appx. 3 (11th Cir. 2004) (unpublished) (“Molden I”).
The Supreme Court vacated our Molden I decision and remanded the case to
us for further consideration in light of United States v. Booker, 543 U.S. 220
(2005). On reconsideration, we held that the district court had committed (1) a
Booker constitutional error by enhancing Molden’s sentence based on facts not
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found by a jury, and (2) a Booker statutory error by applying the Guidelines as
mandatory. The government conceded that it could not meet its burden of showing
that these errors were harmless, and thus, we vacated Molden’s sentence and
remanded to the district court for resentencing consistent with Booker. See United
States v. Molden, Case No. 03-15931, 144 Fed. Appx. 11 (11th Cir. 2005)
(unpublished) (“Molden II”). In Molden II, we noted the following:
On remand, the district court is required to sentence Molden under an
advisory Guidelines regime, and shall consider the Guidelines range
and “other statutory concerns as well, see [18 U.S.C.] § 3553(a)
(Supp. 2004).” Booker, 125 S. Ct. at 757. By this order, we do not
mean to imply that on remand the district court must impose a lesser
sentence. Rather, we merely hold that the government has failed to
meet its burden to show that the Booker error was harmless. We also
will not attempt to decide now whether a particular sentence below or
above the Guidelines range might be reasonable in this case, as that
issue is not before us.
Id., slip op. at 5 n.2.
The district court conducted a resentencing hearing at which Molden made
several arguments in favor of a lower sentence. According to the PSI, Molden’s
base offense level was 20 under U.S.S.G. § 2K2.1(a)(4)(A). The probation officer
recommended a four-level upward adjustment, pursuant to § 2K2.1(b)(5), for
possessing a firearm in connection with another felony offense -- an aggravated
assault on a law enforcement officer -- and a two-level upward adjustment, under §
3C1.2, for reckless endangerment during flight. Based on an adjusted offense level
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of 26 and a criminal history category of V (from a total of 10 criminal history
points), the advisory Guidelines range was 110 to 137 months imprisonment.
At the resentencing hearing, Molden argued (1) that, after Booker, it would
be unfair to continue to sentence him based on facts not found by the jury; and (2)
that the actual charged offense was not egregious because “there is nothing
innately morally wrong about” possessing a firearm when you are prohibited from
doing so, and therefore, “nine years for having a gun when you have a prior felony,
and that is all, is an extremely egregious sentence”. He admitted that he
“overreact[ed] to the situation and act[ed] in a hot-headed way,” but argued that he
was only 22 years old at the time and is “not a person who has a violent streak,”
but rather, is a “thoughtful young man” who is “redeemable” and should have the
rest of his life ahead of him, rather than spending nine years in prison. Molden
suggested that the only way to cure the Booker error in his case would be for the
district court not to impose the two offense level enhancements, totaling six
offense levels, recommended by the PSI and applied in calculating his original
sentence.
The government asserted that there was a factual basis for both
enhancements that originally were applied, and therefore, that the Guidelines
imprisonment range should remain the same. The government also urged the
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district court again to impose a sentence between 110 to 120 months, given the fact
that this was “a somewhat egregious felon in possession case.”
The district court found that “the Guidelines were properly computed in this
case. I do believe that the enhancements that were made by the court were correct.
And I’m saying that now as the trier of fact on those issues. I think the range was
properly derived.” Thereafter, the court noted, “I need to determine what sentence
is reasonable,” and elicited argument from the parties. The government stated that
Molden’s Guidelines imprisonment range of 110 to 137 months was “mostly
because of his prior criminal history,” and because he “committed the offense in a
way that merited the enhancements.” The government highlighted that this was
Molden’s fifth felony conviction, and that he “is not some guy who is going to
easily turn his life around . . . .” The government also argued that it was
appropriate for the court to consider Molden’s criminal history in fashioning a
reasonable sentence, as well as other factors, such as “how society should be
protected.” The government asserted that Molden was a “menace,” and therefore,
concluded that a sentence within the Guidelines between 110 to 120 months would
be reasonable.
The district court concluded that a 110-month sentence was reasonable in
this case, noting that it had taken into account the nature and circumstances of the
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crime and Molden’s criminal record, and that “110 months is about right given the
conviction and the facts surrounding the offense and [Molden’s] prior record.”
Accordingly, the district court imposed the same sentence of 110 months’
imprisonment and 3 years’ supervised release. This appeal, “Molden III,”
followed.
First, Molden asserts the district court erred by applying the § 2K2.1(b)(5)
enhancement. The government responds that the law-of-the-case doctrine
precludes review of the district court’s application of § 2K2.1(b)(5). In Molden I,
in connection with our rejection of Molden’s Apprendi claim, we said the
following:
Section 2K2.1(b)(5) provides for a four-level enhancement “[i]f the
defendant used or possessed any firearm or ammunition in connection
with another felony offense.” U.S.S.G. 2K2.1(b)(5). “‘Felony
offense,’ as used in subsection (b)(5), means any offense (federal,
state, or local) punishable by imprisonment for a term exceeding one
year, whether or not a criminal charge was brought, or conviction
obtained.” U.S.S.G § 2K2.1, comment. (n.7). In United States v.
Jackson, 276 F.3d 1231 (11th Cir. 2001), we affirmed application of
the § 2K2.1(b)(5) adjustment where the defendant “repeatedly
attempted to reach into his left pant-pocket,” in which a firearm was
later found, during his resistance to police officers’ attempt to arrest
him. Id. at 1233-35. We concluded that, even though there was no
evidence that the defendant armed himself as part of a preconceived
plan to commit assault and battery upon a police officer and it was
difficult to infer from the nature of the crime alone that the defendant
intended to use the gun at the time of the assault, it was reasonable for
the district court to find that “the defendant made a real and
determined effort to use the gun in connection with the assault in
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some manner.” Id. at 1235. According to the PSI, as Molden fled on
foot after crashing his motorcycle, he repeatedly attempted to reach
for his weapon in his waistband in order to intimidate the troopers
who were pursuing him. Accordingly, the record supports application
of the enhancement.
Molten I, slip op. at 11 n.7 (emphasis added).
The law-of-the-case doctrine provides that “findings of fact and conclusions
of law by an appellate court are generally binding in all subsequent proceedings in
the same case in the trial court or on a later appeal.” Luckey v. Miller, 929 F.2d
618, 621 (11th Cir. 1991) (quotation omitted). “The purpose of the law of the case
doctrine is to establish efficiency, finality, and obedience within the judicial
system.” Id. The law-of-the-case doctrine applies to findings made under the
Sentencing Guidelines. See, e.g., United States v. Bordon, 421 F.3d 1202, 1207-08
(11th Cir. 2005) (declining to consider a challenge to the Guidelines calculations
that was previously reviewed and affirmed by this Court). Simply put, as we noted
in Molden I, the record supports the enhancement under § 2K2.1(b)(5). In any
event, the law-of-the-case doctrine precludes review of this issue for a second time
in the instant appeal. See Luckey, 929 F.2d at 621.
Molden also contends that his sentence was unreasonable under Booker and
in light of the 18 U.S.C. 3553(a) factors. After Booker, a district court, in
determining a reasonable sentence, must correctly calculate the sentencing range
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under the Guidelines and then consider the factors set forth in 18 U.S.C. § 3553(a).
See United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005); see also United
States v. Shelton, 400 F.3d 1325, 1332 n.9 (11th Cir. 2005) (“A sentencing court
under Booker still must consider the Guidelines, and, such consideration
necessarily requires the sentencing court to calculate the Guidelines sentencing
range in the same manner as before Booker.”). These factors include:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed-
(A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner; [and]
(3) the kinds of sentences available[.]
18 U.S.C. § 3553(a)(1)-(3). “Although sentencing courts must be guided by these
factors, ‘nothing in Booker or elsewhere requires the district court to state on the
record that it has explicitly considered each of the § 3553(a) factors or to discuss
each of the § 3553(a) factors.’” United States v. Thomas, 446 F.3d 1348, 1357
(11th Cir. 2006) (quoting United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.
2005)).
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After a thorough review of the record, with particular attention to the
transcripts from Molden’s resentencing sentencing hearing and the PSI, we readily
conclude Molden’s sentence was reasonable. The district court explicitly stated it
had considered the § 3553(a) factors, including the nature and circumstances of the
offense and the criminal history of the defendant. Talley, 431 F.3d at 786; 18
U.S.C. § 3553(a)(1). And from our review of the resentencing transcript, it is clear
the district court understood the Guidelines range to be advisory. Moreover, the
district court imposed a sentence at the bottom of the advisory Guidelines range,
which we have said is an indication of a reasonable sentence. Id. at 788 (noting
that “ordinarily we would expect a sentence within the Guidelines range to be
reasonable”). Finally, “[t]he parties’ arguments and the PSI’s calculations outlined
‘the kinds of sentences available.’” Thomas, 446 F.3d at 1357 (quoting 18 U.S.C.
§ 3553(a)(3)).
We are unpersuaded by Molden’s argument concerning the weight given to
the factors contained in § 3553(a)(2)(A), which he urges would support a lower
sentence. Put simply, the presence of other sentencing factors, such as Molden’s
criminal history and his reckless conduct during his attempt to elude law
enforcement officers, also must be taken into account under § 3553(a) and amply
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support the sentence imposed. Accordingly, we conclude that Molden’s sentence
is reasonable and affirm.
AFFIRMED.
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