                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       March 27, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 06-3048
          v.                                               D. Kansas
 STEV EN JO E G A TEWO O D ,                    (D.C. No. 02-CR-40117-JAR)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, A ND ER SO N, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties' request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

submitted without oral argument.

      Steven Joe Gatewood pled guilty to possession of a firearm after having

been convicted of a felony in violation of 18 U.S.C. § 922(g). He was sentenced

to a 97 month term of imprisonment to be followed by 3 years of supervised


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
release. Gatewood appealed from his sentence. W e affirmed, concluding he was

not entitled to a reduction for acceptance of responsibility; his offense level

enhancem ent for possession of three or more firearms was proper; and his offense

level enhancement for possession of a firearm in relation to another offense was

also proper. See United States v. Gatewood, 370 F.3d 1055 (10th Cir. 2004),

vacated, 453 U.S. 1109 (2005). On petition for certiorari, the Supreme Court

vacated our judgment and remanded the case for further consideration in light of

United States v. Booker, 543 U.S. 220 (2005). The Supreme Court did not

otherw ise reach the merits of the case. W e remanded the case for resentencing.

See United States v. Gatewood, 132 Fed. Appx. 778, 779 (10th Cir. 2005). At

that time, he renewed his objections regarding the district court’s refusal to apply

a reduction for acceptance of responsibility and regarding the sentence

enhancements. Nonetheless, considering the sentencing guidelines as only

advisory the district court imposed a sentence identical to Gatewood’s initial

sentence. This appeal followed.

                                   I. Background

      The facts of this case are set forth in our earlier opinion and need only be

summarized here. Arriving at Gatewood’s home in answer to a 911 call, law

enforcement officers discovered the two-year old child of Gatewood’s girlfriend

had died from a self-inflicted gunshot wound. A Glock 9mm semi-automatic

pistol was found on the floor next to the child and an empty gun safe in the

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bedroom was open with the key in the lock. Additional firearms w ere found in

other locations and an anhydrous ammonia tank was also found in a shed behind

the residence.

      After offering several shifting versions of the circumstances, Gatew ood’s

girlfriend eventually admitted she purchased the gun for Gatewood and her

previous statements were stories concocted with Gatewood. She also told police

she had received methamphetamine from Gatew ood just two or three days before

the shooting. Officers later learned five other people, including a

“methamphetamine cook,” were at the residence in the early morning of the

shooting. Several people made statements to investigators regarding Gatew ood’s

possession of guns and drug use. Based on the evidence of Gatewood’s continued

drug use and false statements, we concluded the district court did not err in

determining Gatewood failed to take adequate responsibility for his offenses. Id.

at 1062-63. W e also concluded the record adequately supported the district

court’s sentence enhancements. Id. at 1064-65.

                                   II. Discussion

      W e review sentences imposed under the advisory guidelines utilizing a

tw o-step approach. United States v. Hernandez-Castillo, 449 F.3d 1127, 1129

(10th Cir. 2006), cert. denied, 127 S.Ct. 936 (2007). “First, we consider whether

the district court properly applied the Guidelines at Step 1, reviewing its legal

determinations de novo and its factual findings for clear error.” Id. “Only if we

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conclude that the district court correctly applied the G uidelines or that any errors

were harmless, do we consider whether the ultimate sentence imposed in Step 2

was reasonable, applying a presumption of reasonableness to sentences falling

within the Guidelines range.” Id. at 1129-30. On appeal, Gatewood raises the

same arguments we addressed on his first challenge to his sentence. The

government contends these issues are barred by the “law of the case” doctrine.

W e agree.

      “The law of the case doctrine ‘posits that when a court decides upon a rule

of law, that decision should continue to govern the same issues in subsequent

stages in the same case.’” Roth v. Green, 466 F.3d 1179, 1187 (10th Cir. 2006)

(citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988)).

“W hen a case is appealed and remanded, the decision of the appellate court

establishes the law of the case and ordinarily will be followed by both the trial

court on remand and the appellate court in any subsequent appeal.” Rohrbaugh v.

Celotex Corp., 53 F.3d 1181, 1183 (10th Cir.1995). On remand, the district court

was ordered to reconsider Gatewood’s sentence in the light of Booker. All fact

issues and all other law issues, including our previous decision regarding the

district court’s correct application of the guideline methodology were unaffected

by the Supreme Court’s remand. They stand as the law of this case. The only task

for the district court on remand w as to reconsider the sentence by applying the

§3553(a) factors and considering the guidelines advisory only.

                                          -4-
      Gatew ood argues his sentence is unreasonable, suggesting the district court

abused its discretion “based on the unfortunate fact that a [two]-year-old child

obtained access to the firearm, and killed himself.” (Appellant’s Br. at 19.) W e

have jurisdiction to review the reasonableness of any sentence, United States v.

Fonseca, 473 F.3d 1109, 1112 (10th Cir. 2007), and that is our sole inquiry in this

appeal. See also United States v. Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir.

2006) (“[W ]hile we do not have jurisdiction to review the district court's

discretionary decision to deny a downward departure, we have jurisdiction

post-Booker to review the sentence imposed for reasonableness.”).

      Gatewood argues the district court’s reaction to a child’s death led to an

unreasonable sentence, citing to the district court’s following statement at his

original sentence:

      This defendant engaged in conduct that was not only criminal, but
      reckless and had very tragic and dire circumstances. That conduct
      has been taken into account in part in various enhancements that
      were given to him for having firearms in the house.

(Appellant’s Br. at 19). The record clearly reflects, however, on remand the

district court specifically considered and applied the § 3553(a) factors, stating:

      The Court has given consideration to [the] plea agreement, has given
      consideration to a true and accurate and appropriate application of
      the Guidelines, but has also given consideration to the 18 U.S.C. §
      3553(a) factors in determining and concluding that a 97-month
      imprisonment term promotes respect for the law, provides just
      punishment for the offense, affords adequate deterrence to criminal
      conduct, and protects the public from further crimes of the defendant,
      and provides the defendant with the necessary treatment to address
      his substance abuse problems.

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(Vol. 2 at 19). It sentenced Gatewood within the guideline range and, as

previously determined, the enhancements were supported by the evidence. A

sentence within the guidelines is presumptively reasonable. United States v.

M artinez-Trujillo, 468 F.3d 1266, 1269 (10 th Cir. 2006) (citing United States v.

Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006) (“If . . . the district court properly

considers the relevant Guidelines range and sentences the defendant within that

range, the sentence is presumptively reasonable.”)). Gatewood failed to rebut the

presumption of reasonableness.

      A FFIR ME D.


                                                ENTERED FOR THE COURT


                                                Terrence L. O’Brien
                                                Circuit Judge




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