                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0173n.06

                                         No. 18-6273

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                             Mar 26, 2020
 UNITED STATES OF AMERICA,                             )
                                                                         DEBORAH S. HUNT, Clerk
                                                       )
                                                       )
        Plaintiff - Appellee,                          )
                                                       )      ON APPEAL FROM THE
 v.                                                    )      UNITED STATES DISTRICT
                                                       )      COURT FOR THE WESTERN
 DAVID GATEWOOD,                                       )      DISTRICT OF TENNESSEE
                                                       )
        Defendant - Appellant.                         )
                                                       )


BEFORE: SILER, GIBBONS, and THAPAR, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. This case arises from a direct appeal of a

criminal sentence. David Gatewood pled guilty to two counts of robbery and two counts of using

firearms in relation to a crime of violence under 18 U.S.C. § 924(c). On November 13, 2018, the

district court sentenced Gatewood to 390 months’ imprisonment, including a twenty-five-year

mandatory minimum for a “second or subsequent conviction” under § 924(c). The First Step Act

(“Act”) was enacted on December 21, 2018. In relevant part, section 403 of the Act amended

§ 924(c)(1)(C)’s penalties to trigger the twenty-five-year minimum only when the defendant had

a prior, final § 924(c) conviction. Gatewood would not have triggered the twenty-five-year

minimum because he did not have a prior § 924(c) conviction but two convictions within the same

indictment. Had Gatewood been sentenced after section 403 was effective, his sentence would

have been much lower. Subsection 403(b) of the Act provides for limited retroactivity of the
No. 18-6273, United States v. Gatewood


section’s amendments, applying to defendants where “a sentence for the offense has not been

imposed as of such date of enactment.”

       Gatewood argues that his sentence was not yet imposed because his direct appeal was

pending when the Act took effect, and therefore he is entitled to resentencing. His argument is

foreclosed by this court’s recent decision in United States v. Richardson, which held that “a

sentence is ‘imposed’ when the trial court announces it, not when the defendant has exhausted his

appeals from the trial court’s judgment.” 948 F.3d 733, 748 (6th Cir. 2020). This interpretation,

contrary to Gatewood’s assertions, does not violate any constitutional principles. We therefore

affirm Gatewood’s sentence.

                                                 I.

       David Gatewood was arrested in 2017 and admitted to the armed robbery of two Memphis

businesses. The United States charged Gatewood with four counts: two counts of robbery in

violation of 18 U.S.C. § 1951; one count of discharging a firearm during and in relation to a crime

of violence in violation of 18 U.S.C. § 924(c); and one count of brandishing a firearm during and

in relation to a crime of violence also in violation of § 924(c). Gatewood pled guilty to all four

counts. The penalty for a first violation of § 924(c) carries a mandatory five-year minimum

sentence for carrying a firearm, seven years for brandishing a firearm, and ten years for discharging

a firearm. 18 U.S.C. § 924(c)(1)(A). At the time of Gatewood’s sentencing, any “second or

subsequent conviction under” § 924(c) carried a mandatory twenty-five year consecutive prison

term, even if the second § 924(c) violation was part of the same indictment as the first. 18 U.S.C.

§ 924(c)(1)(C)(i) (2006).

       On November 13, 2018, the district court sentenced Gatewood to 390 months’

imprisonment, or thirty-two and one-half years. Gatewood received six-months’ imprisonment



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for each of the two robbery counts, to be served concurrently; a mandatory seven-years’

imprisonment on the brandishing § 924(c) count; and a mandatory twenty-five-years’

imprisonment on the discharging § 924(c) count. The district court entered its judgment on

November 14, 2018. Gatewood appealed.

        While Gatewood’s case was pending on appeal, the First Step Act was enacted on

December 21, 2018. Pub. L. No. 115-391, 132 Stat. 5194 (2018). Section 403 of the Act, titled

“CLARIFICATION OF SECTION 924(C) OF TITLE 18, UNITED STATES CODE,” amends

§ 924(c)(1)(C) “by striking ‘second or subsequent conviction under this subsection’ and inserting

‘violation of this subsection that occurs after a prior conviction under this subsection has become

final.’” Id. § 403, 132 Stat. at 5221–22. In other words, the twenty-five year mandatory sentence

for a “second or subsequent count of conviction” under § 924(c)(1)(C) is triggered only if the

defendant has a prior § 924(c) conviction that has become final. Gatewood lacked a prior, final

conviction under § 924(c), and thus, under the amended provision, he would not have been subject

to the mandatory twenty-five-year sentence.

        Subsection 403(b) of the Act, titled “APPLICABILITY TO PENDING CASES,” provides

as follows: “This section, and the amendments made by this section, shall apply to any offense

that was committed before the date of enactment of this Act, if a sentence for the offense has not

been imposed as of such date of enactment.” 132 Stat. at 5222 (emphasis added). In other words,

section 403’s amendments to § 924(c) apply only to sentences “imposed” after the Act’s effective

date.

                                                II.

        Gatewood contends he is entitled to be resentenced under the amended 18 U.S.C. § 924(c).

He argues that his sentence is not yet final because his direct appeal is pending, and that section



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403 applies to defendants who were sentenced before the Act, but whose sentences “have not been

finally imposed . . . because they are still pending on direct appellate review.” CA6 R. 60, Reply

Br., at 5–6.

        Gatewood’s argument is foreclosed by our recent decision in United States v. Richardson,

948 F.3d 733 (6th Cir. 2020). In that case, we considered the same question before us today—

whether section 403 applies to defendants whose cases were pending appeal at the time of

enactment—and we held that it does not. Id. at 745, 750. Like Gatewood, the defendant in

Richardson was convicted and sentenced for multiple § 924(c) violations prior to enactment of the

First Step Act. Id. at 745. After the First Step Act was enacted, the defendant similarly argued on

direct appeal that he was entitled to retroactive application of section 403’s amendments to

§ 924(c). Id. at 748. We rejected this argument, holding that “a sentence is ‘imposed’ when the

trial court announces it, not when the defendant has exhausted his appeals from the trial court’s

judgment.” Id. at 748–49. Gatewood therefore cannot benefit from section 403 because the district

court pronounced his sentence before the Act took effect.

                                               III.

        Alternatively, Gatewood argues that the failure to resentence him under the amended

§ 924(c) violates the separation of powers doctrine, principles of equal protection, and the Eighth

Amendment’s prohibition against grossly disproportionate sentences. For the reasons explained

below, these arguments also fail.

                                                A.

        Gatewood argues that if we hold section 403 does not apply to him based on a finding that

“Congress dictated under the Act when a conviction was final,” he would argue that “the Act

violates the separation of powers doctrine by stripping the judiciary of its constitutional and



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No. 18-6273, United States v. Gatewood


judicial prerogative in sentencing and oversteps its limits in determining when a conviction is

final.” CA6 R. 58, Appellant Br., at 21. But section 403 does not dictate when a conviction is

final; it limits the retroactive application of an amendment that reduces the penalty for a conviction.

That is within Congress’s authority. See United States v. Turner, 456 F. App’x 545, 549 (6th Cir.

2012) (“[T]he retroactive/prospective line must be drawn by Congress.”). Moreover, the Supreme

Court has long held that “Congress . . . has the power to fix the sentence for a federal crime, and

the scope of judicial discretion with respect to a sentence is subject to congressional control.”

Mistretta v. United States, 488 U.S. 361, 364 (1989) (internal citation omitted). Therefore,

Gatewood’s separation of powers argument fails.

                                                  B.

       Gatewood next argues that he is deprived of equal protection of the law if the section 403

amendments do not apply to him, as such an interpretation would treat “similarly situated offenders

[differently] due to an arbitrary date that makes no distinction for the purpose of deterrence.” CA6

R. 58, Appellant Br., at 22. Beyond the interest in deterring gun violence, Gatewood fails to

acknowledge the government’s “strong interest in the finality of sentences.” United States v.

Blewett, 746 F.3d 647, 659 (6th Cir. 2013) (en banc). Gatewood concedes that rational basis

review applies to his argument, and under that test we accord “a strong presumption of validity”

to a statute and “uphold the statute ‘if there is any reasonably conceivable state of facts that could

provide a rational basis for the classification.’” Walker v. Bain, 257 F.3d 660, 668 (6th Cir. 2001)

(quoting Heller v. Doe, 509 U.S. 312, 319–20 (1993)). Because limiting the retroactivity of section

403’s amendments supports the government’s legitimate interest in preserving sentence finality,

the statute passes rational basis review. We thus reject Gatewood’s equal protection argument.




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No. 18-6273, United States v. Gatewood


                                                C.

       Finally, Gatewood contends his sentence violates the Eighth Amendment. With regard to

sentencing, the Eighth Amendment “forbids only extreme sentences that are ‘grossly

disproportionate’ to the crime.” United States v. Layne, 324 F.3d 464, 473 (6th Cir. 2003) (quoting

Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)). Not only does this

present a very high bar, but courts also “grant substantial deference to the . . . [legislature] in

determining the types and limits of punishments for crimes.” Harmelin, 501 U.S. at 999 (Kennedy,

J., concurring) (quoting Solem v. Helm, 463 U.S. 277, 290 (1983)). Accordingly, “[a] sentence

within the . . . maximum set by statute generally does not constitute ‘cruel and unusual

punishment.’” Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000) (quoting United States v.

Organek, 65 F.3d 60, 62 (6th Cir. 1995)). Gatewood was sentenced pursuant to a federal statute,

§ 924(c), and although he received a severe sentence of thirty-two and one-half years, his sentence

was within the sentencing guidelines and not grossly disproportionate to his crimes of armed

robbery.

       Although someone in Gatewood’s position today would receive a substantially lower

sentence, that disparity does not amount to an Eighth Amendment violation. See Layne, 324 F.3d

at 474 (holding that a sentence does not violate the Eighth Amendment “merely because it is

disproportionate to the sentences received by others who committed the same or similar crimes”);

Dorsey v. United States, 567 U.S. 260, 280 (2012) (explaining that disparities in sentences “will

exist whenever Congress enacts a new law changing sentences” and “in federal sentencing the

ordinary practice is to apply new penalties to defendants not yet sentenced, while withholding that

change from defendants already sentenced”); Blewett, 746 F.3d at 660 (explaining that




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“[w]ithholding the benefits of a change from previously sentenced defendants . . . is the general

practice in federal sentencing”). Therefore, Gatewood’s Eighth Amendment argument lacks merit.

                                               IV.

       Because Gatewood was sentenced prior to enactment of the First Step Act, he is not entitled

to resentencing. Therefore, we affirm.




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