                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                 No. 07-13313                    May 20, 2008
                             Non-Argument Calendar             THOMAS K. KAHN
                           ________________________                CLERK


                       D. C. Docket No. 05-60022-CR-WPD

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

THEODORE WITHERSPOON,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________

                                  (May 20, 2008)

Before BLACK, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

      This is Theodore Witherspoon’s second appearance before the Court. We

previously vacated his convictions for possessing a firearm in relation to a crime of

violence and possession of a firearm by a convicted felon, and remanded his case
to the district court for the limited purpose of resentencing as to the other counts on

which he was convicted, after a jury trial. United States v. Orisnord, 483 F.3d

1169 (11th Cir.), cert. denied, 128 S. Ct. 673 (2007). He now challenges his 387-

month sentence, imposed after our limited remand, for conspiracy to commit a

Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and conspiracy and

attempt to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846.

On appeal, Witherspoon argues: (1) the district court’s application of a firearms

enhancement to his Guidelines sentencing range, under U.S.S.G. § 2D1.1(b)(1),

violated the law of the case established by our Orisnord decision; and (2) the

district court increased his sentence based on facts not admitted by him nor found

by a jury, in violation of United States v. Booker, 543 U.S. 220, 244 (2005). After

careful review, we affirm.

      When a district court applies a sentencing enhancement, we review the

district court’s factual findings for clear error and its application of the Sentencing

Guidelines to those facts de novo. See United States v. Massey, 443 F.3d 814, 818

(11th Cir. 2006). We must affirm the district court’s factual findings so long as

they are “plausible in light of the record viewed in its entirety.” Id. (citation and

quotation omitted).




                                          2
      In our prior opinion, we outlined the facts underlying Witherspoon’s

conviction for conspiring to commit a Hobbs Act robbery of 20 to 25 kilograms of

cocaine at a Colombian stash house in Fort Lauderdale and his associated

conviction for conspiracy and attempt to possess with intent to distribute cocaine.

See Orisnord, 483 F.3d at 1173-76. Accordingly, in this opinion, we summarize

only the facts relating to the limited remand proceedings.

      In Orisnord, we concluded that the evidence was insufficient to sustain

Witherspoon’s firearms convictions, and, “without further discussion,” reversed

those convictions, vacated the judgment, and remanded to the district court for

resentencing. Id. at 1176. In light of the reversal as to some of the convictions and

limited remand for resentencing, we declined to address Witherspoon’s sentencing

arguments. Id. at 1181 n.5.

      The    presentence      investigation       report   (“PSI”)   prepared   prior   to

Witherspoon’s resentencing proceedings recommended a base offense level of 34,

pursuant to U.S.S.G. § 2D1.1(a)(3), and a 2-level increase, pursuant to §

2D1.1(b)(1), based upon a finding that a dangerous weapon was possessed during

the offense. With an adjusted offense level of 36 and a criminal history category

VI, Witherspoon faced an advisory Guidelines range of 324-405 months’

imprisonment. Witherspoon objected to the § 2D1.1(b)(1) enhancement, arguing



                                              3
that this Court’s decision reversing his firearms convictions established, as “the

law of the case,” that he did not actually or constructively possess a firearm and

thus prevented the district court from increasing his Guidelines range for

possession of a firearm. In a related vein, Witherspoon argued that after this Court

concluded the evidence was insufficient to support his firearms convictions,

Booker barred the district court from engaging in judicial factfinding that would

elevate his sentence beyond what was allowed for his offenses of conviction.

      Over Witherspoon’s objections, the district court adopted the PSI’s

Guidelines calculations. The district court concluded that our Orisnord decision

concerning the insufficiency of the evidence to sustain Witherspoon’s firearms

convictions did not bar the court from enhancing the advisory Guidelines range for

use of a dangerous weapon, under § 2D1.1(b)(1), upon a finding, by a

preponderance of the evidence, that the use of a firearm in the offense was

reasonably foreseeable to Witherspoon.           The district court found, by a

preponderance of the evidence, that Witherspoon’s co-conspirators’ possession of

guns was reasonably foreseeable to Witherspoon.

      The district court further stated that it had considered the factors set forth in

§ 3553(a), specifically noting that the staged robbery, if it had been real, would

have been a “dangerous situation” in which “someone was likely to be hurt or



                                          4
killed.” The court concluded that a reasonable sentence would be one at the top

end of the Guidelines range of 324 to 405 months’ imprisonment. However, the

court stated, it did not want to create the impression that it was punishing

Witherspoon for exercising his appellate rights, so it sentenced him to “the exact

same sentence that [it] imposed the last time” -- a mid-range sentence of 387

months’ imprisonment. This appeal followed.

       First, Witherspoon        challenges the       district   court’s    finding    that his

codefendants’ use of firearms was reasonably foreseeable. Witherspoon contends

that there is no evidence in the record to support the finding, and that even if such

evidence existed, the district court was barred from making such a finding,

pursuant to the “law of the case” doctrine.

       The firearms enhancement for co-conspirator possession applies to a

convicted defendant, pursuant to § 2D1.1(b)(1), where the government proves, by a

preponderance of the evidence: “(1) the possessor of the firearm was a

co-conspirator, (2) the possession was in furtherance of the conspiracy, (3) the

defendant was a member of the conspiracy at the time of possession, and (4) the

co-conspirator possession was reasonably foreseeable by the defendant.”                      See

United States v. Gallo, 195 F.3d 1278, 1284 (11th Cir. 1999) (emphasis omitted).1


       1
         Witherspoon does not contest that his co-conspirators possessed firearms in furtherance
of the conspiracy, and that he was a member of the conspiracy at the time of their possession.

                                                5
      The “law of the case doctrine” dictates that “an issue decided at one stage of

a case is binding at later stages of the same case.” United States v. Escobar-Urrego,

110 F.3d 1556, 1560 (11th Cir. 1997). This doctrine is meant to “maintain

consistency and avoid reconsideration of matters once decided during the course of

a single continuing lawsuit.” Id. (internal quotation and citation omitted).     The

doctrine binds district courts as to both findings of fact and conclusions of law.

United States v. Robinson, 690 F.2d 869, 872 (11th Cir. 1982).

      In Orisnord, we noted that Witherspoon told the confidential informant

(“CI”) that co-conspirator Orisnord had told him about the scheme to rob a stash

house in Fort Lauderdale, and, although Witherspoon did not have a firearm,

Orisnord had told him “not to worry because ‘we got that.’” 483 F.3d at 1174.

Moreover, while Witherspoon and codefendant Polynice were in a vehicle with

Orisnord, Polynice asked Orisnord whether he had procured a gun for Polynice,

and Orisnord replied that they “would get pistols at a later time.” Id.        When

Witherspoon and the others met with undercover agent Connors, Connors told the

group that “they should have their firearms ready.” Id. Finally, three weapons

were seized from Witherspoon’s co-conspirators when they were arrested at an

undercover warehouse.




                                         6
       Notably, nothing in our prior opinion remotely suggested that the district

court was prohibited from considering or applying an enhancement for the co-

conspirators’ possession of the firearms. Rather, we simply found the evidence

insufficient to support Witherspoon’s firearms convictions -- an issue entirely

separate and involving a completely different standard from whether the evidence

supports the sentencing enhancement. The “law of the case” doctrine simply does

not apply here, since Witherspoon has not pointed to “an issue decided at one stage

of a case [that] is binding at later stages of the same case.” Escobar-Urrego, 110

F.3d at 1560.2     On this record, the district court did not err in finding, by a

preponderance of the evidence, that possession of firearms by Witherspoon’s co-

conspirators was reasonably foreseeable to him and accordingly adjusting

Witherspoon’s offense level by two levels pursuant to § 2D1.1(b)(1).

       Next, Witherspoon argues that his sentence was unreasonable because the

district court failed to provide sufficient explanation for its decision to give him the

same sentence as the one that he had received prior to the reversal of his firearms

convictions. According to Witherspoon, in the absence of any other justification




       2
           It is well-settled that “[w]here appropriate, the sentencing court may consider the
defendant’s relevant conduct if that conduct is established by a preponderance of the evidence,
rather than the proof beyond a reasonable doubt needed to establish elements of the criminal
offense.” See United States v. Saavedra, 148 F.3d 1311, 1314 (11th Cir. 1998).

                                              7
under § 3553(a), the sentence must be viewed as punishing him for exercising his

appellate rights. We disagree.

      With regard to appellate review of sentences, the Supreme Court in Gall

emphasized that “‘while the extent of the difference between a particular sentence

and the recommended Guidelines range is surely relevant, courts of appeals must

review all sentences -- whether inside, just outside, or significantly outside the

Guidelines range -- under a deferential abuse-of-discretion standard.’”       United

States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Gall, 128 S.Ct. at

591). Our appellate review for reasonableness consists of two steps. Id. at 1190.

First, we must we must “‘ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the §

3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence -- including an explanation for any

deviation from the Guidelines range.’” Id. (quoting Gall, 128 S.Ct. at 597). If we

conclude that the district court made no procedural errors, we must consider the

“‘substantive reasonableness of the sentence imposed, under an abuse-of-discretion

standard,’” taking into account the “‘totality of the circumstances.’” Id. (quoting

Gall, 128 S. Ct. at 597). In reviewing for substantive reasonableness, we consider



                                         8
the sentence, in its entirety, in light of the 18 U.S.C. § 3553(a) factors, which

include:

       (1) the nature and circumstances of the offense and the history and
       characteristics of the defendant; (2) the need to reflect the seriousness
       of the offense, to promote respect for the law, and to provide just
       punishment for the offense; (3) the need for deterrence; (4) the need to
       protect the public; (5) the need to provide the defendant with needed
       educational or vocational training or medical care; (6) the kinds of
       sentences available; (7) the Sentencing Guidelines range; (8) pertinent
       policy statements of the Sentencing Commission; (9) the need to
       avoid unwanted sentencing disparities; and (10) the need to provide
       restitution to victims.

United States v. Talley, 431 F.3d 784, 785-86 (11th Cir. 2005).

       In addition to the fact that Witherspoon received a within-Guidelines

sentence,3 the district court explicitly stated that it had considered the § 3553(a)

factors, specifically noting that the staged home-invasion robbery, if it had been

real, would have been a “dangerous situation” in which “someone was likely to be

hurt or killed,” and that a reasonable sentence would be one at the top end of the

Guidelines range. In addition, the district court stated that it would impose the

same sentence in order to prevent the appearance that it was punishing

Witherspoon for exercising his appellate rights. On this record, Witherspoon has

       3
           See Rita v. United States, __ U.S. __, __, 127 S. Ct. 2456, 2462 (2007) (holding that a
court of appeals may afford a presumption of reasonableness to a within-Guidelines sentence);
United States v. Campbell, 491 F.3d 1306, 1314 n.8 (11th Cir. 2007) (noting that, although we have
not normally afforded a within-Guidelines sentence a presumption of reasonableness, the Rita
decision calls that policy into question).


                                                9
not demonstrated that his sentence was substantively unreasonable.4 Accordingly,

we affirm.

       AFFIRMED.




       4
           In light of our finding that there was sufficient evidence to support the district court’s
sentencing enhancement under § 2D1.1(b)(1), we are unpersuaded by Witherspoon’s related
argument that the district court committed Booker procedural error by enhancing his sentence based
on judicial factfinding under the preponderance-of-the-evidence standard. United States v.
Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2006) (in calculating the Guidelines range, a district court
must consider “not merely the charged conduct, but rather all relevant conduct,” including both
uncharged and acquitted conduct and the court’s factual findings on relevant conduct are made by
a preponderance of the evidence, rather than beyond a reasonable doubt (citations and quotations
omitted)).

                                                 10
