United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 6, 2012 Decided July 13, 2012
No. 09-3096
UNITED STATES OF AMERICA,
APPELLEE
v.
LANCE LAMONT GATLING,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:94-cr-00298-1)
Beverly G. Dyer, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.
Suzanne Grealy Curt, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Roy W. McLeese III and
Elizabeth Trosman, Assistant U.S. Attorneys.
Before: SENTELLE, Chief Judge, GRIFFITH, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
2
GRIFFITH, Circuit Judge: Lance Lamont Gatling appeals
the district court’s denial of his motion to modify his
sentence. For the reasons set forth below, we affirm the
district court.
I
On July 8, 1994, Gatling entered the apartment of an
undercover agent of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives to sell him cocaine. The deal went
awry, and Gatling pulled a gun and shot and wounded the
agent. Police backup responded to the wounded agent’s call
for help and arrested Gatling. In 1995, a jury convicted him of
multiple offenses related to the shooting, including possession
of a firearm as a convicted felon, 18 U.S.C. § 922(g)(1)
(1989), but the jury also acquitted him of attempted murder of
a federal employee, 18 U.S.C. § 1114 (1989), and assault with
intent to commit robbery while armed, D.C. Code §§ 22-
501, 22-3202 (1993). United States v. Gatling, 639 F. Supp.
2d 4, 5 (D.D.C. 2009). Gatling was sentenced to 270 months
in prison, and we affirmed his conviction and sentence on
appeal. United States v. Gatling, 107 F.3d 923 (D.C. Cir.
1996). He now argues that he is entitled to a hearing on
whether his sentence should be reduced. Assessing his claim
requires that we venture into the labyrinth that is the United
States Sentencing Guidelines.
Gatling brought his motion pursuant to 18 U.S.C.
§ 3582(c)(2), which provides:
[I]n the case of a defendant who has been sentenced to a
term of imprisonment based on a sentencing range that
has subsequently been lowered by the Sentencing
Commission . . . upon motion of the defendant . . . the
court may reduce the term of imprisonment . . . if such a
3
reduction is consistent with applicable policy statements
issued by the Sentencing Commission.
Id. Gatling’s argument begins with U.S.S.G. § 1B1.10(a)(1),
which states:
In a case in which a defendant is serving a term of
imprisonment, and the guideline range applicable to that
defendant has subsequently been lowered as a result of an
amendment to the Guidelines Manual listed in subsection
(c) below, the court may reduce the defendant’s term of
imprisonment as provided by 18 U.S.C. § 3582(c)(2).
U.S. SENTENCING GUIDELINES MANUAL § 1B1.10(a)(1)
(2011). Subsection (c), in turn, lists Guidelines Amendment
591 as a ground for reduction. Amendment 591 became
effective on November 1, 2000, and provides that the
selection of a defendant’s offense conduct guideline (the
starting point for determining the seriousness of an offense,
and therefore its sentence) must be based only on convicted
conduct. See U.S. SENTENCING GUIDELINES MANUAL app. C,
amend. 591 & cmt. (2003).
Relying on the change wrought by Amendment 591,
Gatling argues that his sentence should be reduced. He claims
the sentencing court based his offense conduct guideline on
attempted murder, of which he was acquitted, rather than
felon in possession of a firearm, of which he was convicted.
Attempted murder has a higher Guideline range than felon in
possession of a firearm. 1 According to Gatling, Amendment
591’s bar on beginning a sentencing calculation with
1
Gatling was also convicted of dealing cocaine, which carried
a maximum statutory sentence of forty years. Gatling, 639 F. Supp.
2d at 9.
4
acquitted conduct lowers a sentencing range, triggering the
protections afforded by 18 U.S.C. § 3582(c)(2). 2 Gatling
argues he is entitled to the benefit of this change in the law
and seeks a hearing under § 3582(c)(2) to see if his sentence
should be reduced.
The district court disagreed. Reviewing the transcript of
the sentencing hearing and the presentencing reports
submitted by the parties, the court identified the three steps it
took to reach Gatling’s ultimate sentence. Gatling, 639 F.
Supp. 2d at 9. The court explained that it started at Sentencing
Guideline § 2K2.1, which covers convictions for felons in
possession of a firearm and provides that “[i]f the defendant
used or possessed any firearm or ammunition in connection
with the commission or attempted commission of another
offense, . . . apply . . . § 2X1.1 (Attempt, Solicitation, or
Conspiracy) . . . .” U.S. SENTENCING GUIDELINES MANUAL
§ 2K2.1(c)(1) (2003). Following that cross-reference, the
court turned to § 2X1.1, which instructs, “When an attempt,
solicitation, or conspiracy is expressly covered by another
offense guideline section, apply that guideline section.” Id.
§ 2X1.1(c)(1). Having concluded from a preponderance of the
evidence that Gatling had attempted to kill the agent, the court
followed the direction of § 2X1.1(c)(1), looked to the
guideline for attempted murder, § 2A2.1, and entered a
sentence within its suggested range. Gatling, 639 F. Supp. 2d
at 9. Gatling appealed to us, and we exercise jurisdiction
under 18 U.S.C. § 1291.
2
As the district court noted, there is some skepticism
regarding whether Amendment 591 “falls within the sweep of
§ 3582(c)(2).” Gatling, 639 F. Supp. 2d at 6 n.2. Because we find
that the sentencing court did not choose attempted murder as the
offense conduct guideline, we need not resolve this issue.
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II
We now face a question of fact — what happened at the
sentencing hearing — and review the district court’s
determination for clear error. See United States v. Edwards,
496 F.3d 677, 683 (D.C. Cir. 2007); Appellant’s Br. 15. We
conclude that the district court did not clearly err by finding
that it reached Gatling’s ultimate sentence by starting with
§ 2K2.1.
At the hearing, the district court announced that Gatling’s
sentence would reflect that a preponderance of the evidence
had shown that he attempted to murder the federal agent. See
United States v. Settles, 530 F.3d 920, 923 (2008) (“[A]
sentencing judge may consider uncharged or even acquitted
conduct in calculating an appropriate sentence, so long as that
conduct has been proved by a preponderance of the evidence
and the sentence does not exceed the statutory maximum for
the crime of conviction.”). Because attempted murder carried
a longer sentence than felon in possession of a firearm,
Gatling tried (unsuccessfully) to convince the court that he
should be sentenced to the lesser amount. While the thrust and
details of this argument are of no concern to this appeal, one
part of his counsel’s presentation is. He retraced the
convoluted steps the Guidelines prescribe, starting with
§ 2K2.1, the guideline for the crime for which Gatling was
convicted:
[T]he way the Court got to section 2A2.1, the attempted
murder guideline, was by way of section 2K2.1, which
applies to the gun offenses in this case. That contains a
cross-reference at section 2K2.1(c). . . . It is this cross-
reference provision in section 2K2.1 that after a few
twists and turns leads the Court back to 2A2.1. 2K2.1
6
sends the Court to 2X1.1, the attempt provision, and
2X1.1 then refers the Court back to 2A2.1. That’s how
the Court can get there by operation of the guidelines for
the gun count . . . .
Sentencing Tr. 51:25-52:19, Sept. 19, 1995.
The court’s conclusion that it began with § 2K2.1 also
squares with Gatling’s argument in his 1995 Presentencing
Memorandum that the court should start there:
If the Court decides to sentence Mr. Gatling for
attempted murder of which the jury acquitted him, the
Court must still consider U.S.S.G. § 2K2.1. That
guideline contains a cross-reference that directs the court
to . . . look to U.S.S.G. § 2X1.1, which . . . also contains a
cross-reference provision. . . . The application notes to
§ 2X1.1 state that “[o]ffense guidelines that expressly
cover attempts include . . . § 2A2.1.”
Def.’s Mem. in Aid of Sentencing 15-16. The Government’s
Presentence Investigation Report also recommended that the
sentencing court begin calculating Gatling’s sentence from
§ 2K2.1. Presentencing Investigation Report 6 (“Count 8 —
Possession of a Firearm . . . . The United States Sentencing
Commission Guideline for violation of 18 U.S.C. § 922(g)(1)
is found in U.S.S.G. § 2K2.1 . . . .”). Thus, both the
government and the defendant proposed that the sentencing
court start from § 2K2.1, and the sentencing court never
indicated that it did otherwise. In fact, the transcript of the
sentencing hearing shows that the court followed along
carefully, flipping through the pages of the Guidelines as
Gatling’s attorney explained how they took the court from the
sentencing range for felon in possession of a firearm to
attempted murder. Sentencing Tr. 52:6-7 (“Let me go back to
7
the 2K again so I can follow this, please.”). All of this points
in the same direction: however the sentencing court may have
determined Gatling’s sentence, it started at § 2K2.1.
Arguing that the court started the calculation of his
sentence with acquitted conduct, Gatling seizes upon the
court’s reference to two cases that used acquitted conduct in
sentencing, United States v. Foster, 19 F.3d 1452 (D.C. Cir.
1994); and United States v. Boney, 977 F.2d 624 (D.C. Cir.
1992). But as we read the transcript, the court referred to
these cases only as support for the principle that acquitted
conduct can be used for some purposes in sentencing, not to
determine the offense conduct guideline.
As Gatling concedes, neither Foster nor Boney
considered how to determine an offense conduct guideline.
Appellant’s Br. 17. They both concerned the use of acquitted
conduct in sentencing within a selected guideline. Foster, 19
F.3d at 251-52; Boney, 977 F.3d at 635-36. And the court
relied upon them for the proposition that acquitted conduct
used for that purpose need only be found by a preponderance
of the evidence. Sentencing Tr. 22:9-17 (“Ms. Kenny, on this
matter, I think we’re guided by United States v. Foster, at 19
F.3d 1452 in our circuit, and they also recognize U.S. v.
Boney, 977 F.2d at 624 . . . . What is improper about the
Court, under the guidelines . . . to consider acquitted conduct
if it finds it has been proven appropriately by in this circuit a
preponderance of the evidence?”); id. at 42:23-25 (“In
reviewing the evidence, the Court has tried to carefully
consider whether or not it’s satisfied, as I said, by a
preponderance of the evidence . . . .”); id. at 43:9-11 (“Using
Foster, by finding a preponderance of the evidence, the Court
will reject the defendant’s request to follow the Third
Circuit’s Kikamura decision requiring clear and convincing
evidence . . . .”). In any event, the discussion of these cases
8
occured before Gatling’s reminder of how the court “got”
from § 2K2.1 to § 2A2.1, which suggests that the court first
considered whether it could use acquitted conduct at all
before discussing the appropriate way to reach such conduct.
The sentencing court did mention that it was “going to
consider the acquitted conduct under 2A2.1(b)(1),”
Sentencing Tr. 40:21-22, which, according to Gatling,
suggests the choice of § 2A2.1 as the offense conduct
guideline. But this statement is equally consistent with the
sentencing court starting from § 2K2.1, reaching § 2A2.1 via
cross-reference, and then relying on acquitted conduct when
applying § 2A2.1(b)(1) after permissibly arriving at that
section. Given the wide berth we grant when reviewing
district courts for clear error, these statements cannot offset
what the other evidence supports: the sentencing court chose
felon in possession as Gatling’s offense conduct guideline.
See Am. Soc’y for the Prevention of Cruelty to Animals v.
Feld Entm’t, Inc., 659 F.3d 13, 16 (D.C. Cir. 2011) (“[T]o
find clear error, we must be ‘left with the definite and firm
conviction that a mistake has been committed.’” (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948))).
This appeal underscores an important feature of modern
federal sentencing practice: the Sentencing Guidelines have
become increasingly complex, and the adoption of
amendments with retroactive application has increased the
need for sentencing courts to describe the winding path they
followed through the Guidelines to arrive at a particular
sentence. It is no longer enough to reach a lawful result
without detailing the route taken to get there. Switching
metaphors, on this playing field one cannot go from Tinker to
Chance without mention of Evers. See Franklin P. Adams,
Baseball’s Sad Lexicon (1910), reprinted in BASEBALL: A
9
LITERARY ANTHOLOGY 20 (Nicholas Dawidoff, ed. 2002).
Sentencing courts must spell out the steps they take, and the
attorneys who appear before them must lend their hand to
help ensure the route followed is clear.
III
The judgment of the district court is
Affirmed.