                   United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 13-1052
                          ___________________________

                               United States of America

                          lllllllllllllllllllll Plaintiff - Appellee

                                             v.

                      Hugo Galaviz, also known as Big Happy

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

                      Appeal from United States District Court
                       for the District of Nebraska - Lincoln
                                   ____________

                           Submitted: September 23, 2013
                              Filed: October 1, 2013
                                  [Unpublished]
                                  ____________

Before WOLLMAN, BEAM, and SMITH, Circuit Judges.
                          ____________

PER CURIAM.

       In a prior opinion in this matter, we reversed the district court's application of
the obstruction of justice sentencing enhancement to defendant Hugo Galaviz. See
United States v. Galaviz, 687 F.3d 1042, 1043 (8th Cir. 2012). We concluded that the
obstruction of justice enhancement did not apply because Galaviz had already pleaded
guilty, and although the record established that he had conspired to kill a confidential
informant while in prison, nothing in the record suggested that Galaviz intended to kill
the informant for the purposes of impeding the progress of the case against Galaviz.
Id. We thus remanded for further proceedings. Id. at 1044. On remand, the district
court1 resentenced Galaviz, removing the enhancement, but the court refused to grant
Galaviz an acceptance of responsibility reduction, given his role in the murder
conspiracy.

       In the present appeal, Galaviz argues that the district court exceeded the scope
of remand by failing to apply the acceptance of responsibility reduction at
resentencing.2 According to Galaviz, because the district court's sole basis for denying
the reduction at original sentencing was based upon application of the obstruction of
justice enhancement, once we reversed the court's application of the enhancement, the
district court did not have remand authority "to construe the conduct supporting the
erroneous application of the obstruction of justice enhancement in such a manner as
to now deny acceptance of responsibility." We think the opposite is true. In the past,
we have explicitly directed a district court to reconsider the acceptance of


      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
      2
        The government contends that Galaviz has waived this issue because (1) he did
not raise the acceptance of responsibility issue in his first appeal, and (2) he did not
raise the scope of remand issue during resentencing. Whatever the merits of the
government's position, we nonetheless choose to address the issue Galaviz raises on
appeal as it is easily resolvable and the procedural issues present a potential for
complexity. See United States v. Stuckey, 255 F.3d 528, 529 n.3 (8th Cir. 2001)
(choosing to address merits instead of waiver issue). In the same vein, we conclude
that Galaviz cannot prevail under any standard of review that potentially applies to
this case. See United States v. Martin, 714 F.3d 1081, 1084 (8th Cir. 2013) (issues
not raised before district court reviewed for plain error); United States v. Godsey, 690
F.3d 906, 911 (8th Cir. 2012) ("We review the district court's interpretation of the
guidelines de novo and its factual findings underlying a denial of an acceptance of
responsibility adjustment for clear error.").

                                          -2-
responsibility adjustment after we reversed its obstruction of justice determination.
United States v. Peters, 394 F.3d 1103, 1108 (8th Cir. 2005). Here, although our prior
opinion did not explicitly direct the district court to reconsider its previous acceptance
of responsibility determination, we conclude this was necessarily within the district
court's remand authority given the close interaction between the Guidelines at issue.3
See United States v. Castellanos, 608 F.3d 1010, 1017 (8th Cir. 2010) ("[L]ower
courts are free to decide new issues left open on remand."). And, too, contrary to
Galaviz's contention, our prior opinion only determined the peripherally related
obstruction of justice enhancement issue and said nothing about an acceptance of
responsibility reduction, much less inferentially resolved it in his favor. Therefore,
we conclude the district court did not err in considering and denying Galaviz an
acceptance of responsibility reduction at resentencing.

      We affirm.
                        _____________________________




      3
       The application notes to the acceptance of responsibility adjustment indicate
that a defendant who exhibits conduct resulting in an obstruction of justice
enhancement ordinarily "has not accepted responsibility for his criminal conduct."
U.S.S.G. § 3E1.1 cmt. n.4.

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