United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-2933

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri.

Rickey Bates, *

*

Appellant. *

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Submitted: April 13, 2010

Filed: July 26, 2010

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Before LOKEN, HANSEN, and MELLOY, Circuit Judges.

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MELLOY, Circuit Judge.

This is Rickey Bates's second appeal to our court. In December 2007, a jury

convicted Bates of being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1). Bates had been arrested with .38 grams of cocaine base on his person,

and the district court applied an enhancement pursuant to United States Sentencing

Guideline § 2K2.1(b)(6) for possession of the firearm "in connection with another

felony offense." The court imposed a 110-month sentence and Bates appealed. We

reversed and remanded as to the application of § 2K2.1(b)(6). United States v. Bates,
561 F.3d 754, 759 (8th Cir. 2009) ("Bates I"). On remand, the district court1

reimposed the 110-month sentence, again finding § 2K2.1(b)(6) applicable. Bates

appeals after resentencing.2

 We affirm. 

I. Background

 At approximately 12:30 a.m. on December 8, 2006, law enforcement officers

observed a stolen vehicle with two passengers driving on a street in St. Louis. Police

later identified Bates as the passenger in the vehicle. The officers surveilled the

vehicle while waiting for backup. After the vehicle stopped at a house, two officers

activated their emergency lights and drove up behind it. The vehicle drove off and

subsequently ran over a set of spike strips placed in the vicinity. The driver lost

control several blocks later and both occupants jumped out of the vehicle. After a foot

pursuit, an officer subdued Bates and discovered a loaded pistol in his waistband. A

subsequent search uncovered .38 grams of cocaine base, i.e. crack cocaine, in a plastic

baggie in Bates's coat pocket. A jury convicted Bates of being a felon in possession

of a firearm.

1

The Honorable Catherine D. Perry, Chief Judge for the United States District

Court for the Eastern District of Missouri. 

2

In addition to the sentencing appeal submitted through counsel, Bates has filed

a pro se supplemental brief challenging his felon-in-possession conviction. 

Specifically, Bates argues that one of the jurors allegedly "evaded questioning" during

voir dire, denying Bates the opportunity to determine if the juror harbored any biases

against him. Bates did not raise this issue or otherwise challenge his conviction in his

first appeal. We will not entertain his arguments now on his second appeal following

our limited remand for resentencing. See United States v. Kress, 58 F.3d 370, 373

(8th Cir. 1995) (issue that could have been raised in first appeal but was not was

waived); United States v. Long, 88 F. App'x 150, 152 (8th Cir. 2004) (unpublished

per curiam) (holding defendant could not challenge conviction after remand for

resentencing). 

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Bates's presentence report ("PSR") recommended the four-level enhancement

pursuant to § 2K2.1(b)(6). The district court overruled Bate's objection and applied

the enhancement, seemingly accepting the government's argument that the firearm and

drugs were connected because both were found on Bates's person. Bates maintained

in his first appeal that the district court erred in applying § 2K2.1(b)(6) because it had

not found an adequate connection between the gun and the drugs under recent circuit

precedent. He argued that under the new approach, finding guns and drugs in the

same location triggered the adjustment only when the underlying felony is drug

trafficking, and pointed out that there had been no allegations that he was involved in

drug dealing. Instead, if the defendant was caught possessing only a "user" quantity

of drugs, as he was, he asserted the court must make an affirmative finding that the

gun facilitated the offense. The government countered that the district court made a

sufficient implicit finding that the weapon facilitated Bates's drug possession, or

alternatively, that any error was harmless. Considering these arguments, we noted

in Bates I that the parties agreed Bates possessed a user quantity of drugs and that the

district court had failed to affirmatively find the gun facilitated what we described to

be the "drug-possession offense." 561 F.3d at 758–59. We reversed, citing United

States v. Blankenship, 552 F.3d 703 (8th Cir. 2009), and remanded for "further

proceedings to allow the district court to make appropriate findings regarding §

2K2.1(b)(6)'s applicability." Id. at 759.

Appearing pro se with standby counsel, Bates testified and called as witnesses

the two arresting officers at his resentencing hearing. He sought to relitigate the events

surrounding his arrest. As most relevant here, he denied possessing the gun, claimed

he was not aware of any drugs being seized, and argued there was no evidence he sold

or attempted to sell drugs or otherwise used the gun to facilitate possession of the

drugs. On cross examination, he stated that he had gotten out at the house to talk to

a friend and denied engaging in a drug deal. He further denied ever using crack

cocaine. Bates acknowledged, however, a prior conviction for selling .29 grams of

crack cocaine and another conviction for possession of crack cocaine. Detective Drew

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Werninger testified that the house where the car had stopped was a "known drug

house" and confirmed on cross examination that the block served as a kind of open air

street market for drugs. Bates objected to this testimony, arguing that it had not been

evidence at trial. Werninger also testified that the vehicle was idling at the curb in a

manner that would have raised suspicion that its occupants were engaged in drug

sales. Although Werninger did not see Bates engage in a drug transaction, he believed

Bates "most likely [got out of the car] to conduct a hand-to-hand transaction of

narcotics sales." Detective Marquis Wren confirmed that the block "is a heavy drug

neighborhood" with considerable foot traffic and testified that he also observed Bates

reenter the vehicle before the pursuit ensued. Bates argued that the detectives lacked

credibility because of inconsistencies in their paperwork as to where the foot pursuit

and arrest took place. 

 Based on the hearing testimony, the government argued that § 2K2.1(b)(6) was

applicable because Bates's possessed the weapon while engaging in a drug-trafficking

crime, namely possession of crack cocaine with the intent to distribute, giving rise to

a presumption of a connection between the two crimes. Alternatively, the

government argued that the gun facilitated simple possession of the drugs. The

district court again found the § 2K2.1(b)(6) enhancement warranted. The court noted

some of the government's arguments concerning the evidence presented at trial

showed the gun facilitated a simple possession offense, but went on to state in part

that

[i]t might be that those would be sufficient if I had to decide this case on

that basis. I think I would find that they were sufficient. However, I

don't have to decide this case on that basis because the defendant's own

testimony has established that this was not mere possession of the drugs. 

The testimony and all the evidence that I've heard today and the evidence

at trial convinces me beyond a reasonable doubt that the defendant

possessed this crack cocaine with the intent to distribute it, and therefore

it was a drug trafficking offense, and so the four-level enhancement

applies if [the gun and drugs] were simply in near proximity[.]

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After considering the 18 U.S.C. § 3553(a) factors, the district court reimposed the

110-month sentence. Bates argues in the instant appeal that the law of the case

prohibited the district court from finding that he was engaged in drug trafficking and

that, in any case, there was insufficient evidence of drug trafficking.

II. Discussion

 The district court's determination that a defendant possessed a firearm in

connection with another felony for purposes of § 2K2.1(b)(6) is a factual finding that

we review for clear error. United States v. Smith, 535 F.3d 883, 885 (8th Cir. 2008). 

As we recently explained regarding the applicability of § 2K2.1(b)(6),

If the felony is for drug trafficking, Application Note 14(B) mandates

application of the adjustment if guns and drugs are in the same location.

If the underlying drug offense is for simple possession, the district court

may still apply the adjustment, but only after making a finding that the

firearm facilitated the drug offense. In other words, when the defendant

subject to a 2K2.1(b)(6) adjustment possesses a “user” amount of drugs

and is not a trafficker, instead of automatically applying the adjustment

when both drugs and weapons are involved in the offense, the district

court must affirmatively make a finding that the weapon or weapons

facilitated the drug offense before applying the adjustment.

United States v. Butler, 594 F.3d 955, 966 (8th Cir. 2010) (internal quotations and

citations omitted). "Absent a plea, a conviction or an allegation with sufficient

supporting evidence of drug trafficking, [the defendant's] applicable underlying drug

offense is possession." United States v. Mansfield, 560 F.3d 885, 888 (8th Cir. 2009). 

Bates argues that under the law-of-the-case doctrine, "the District Court's

finding that Bates had intended to distribute the drugs was foreclosed by this Court's

finding that Bates's other felony offense involved possessing only a user quantity of

drugs." "On remand for resentencing, all issues decided by the appellate court become

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the law of the case, and the sentencing court is bound to proceed within the scope of

any limitations imposed . . . by the appellate court." United States v. Curtis, 336 F.3d

at 666, 669 (8th Cir. 2003) (internal quotation and citation omitted). The law-of-thecase doctrine prevents "the relitigation of settled issues in a case, thus protecting the

settled expectations of parties, ensuring uniformity of decisions, and promoting

judicial efficiency." First Union Nat'l Bank v. Pictet Overseas Trust Corp., Ltd., 477

F.3d 616, 620 (8th Cir. 2007) (internal quotation and citation omitted). It applies,

however, "only to issues actually decided, either implicitly or explicitly, in the prior

stages of a case." Roth v. Sawyer-Cleator Lumber Co., 61 F.3d 599, 602 (8th Cir.

1995). 

 Bates's argument fails because we made no "finding" on the amount of drugs

or the type of drug activity in which he was engaged. Our prior opinion simply noted

the parties's agreement as to the facts. We were not asked to nor did we consider

whether the evidence showed Bates possessed the user quantity with the intent to

distribute it. In fact, whether Bates engaged in drug trafficking became an issue in the

case for the first time during the proceedings on remand. Therefore, our description

of the case as involving a "user quantity" and "drug possession" did not create the law

of the case where the parties presented no controversy as to those questions for our

court to consider and decide. See United States v. Montoya, 979 F.2d 136, 138 (8th

Cir. 1992) (a statement in prior panel opinion was not the law of the case where the

court was considering and deciding a different issue). Furthermore, Bates does not

now argue that the government waived an argument based on trafficking for failing

to present it earlier. 

Additionally, our mandate did not foreclose further consideration of the nature

of Bates's drug activity. On remand, we may provide instructions limiting the scope

of the district court's discretion or we may remand without limitations. United States

v. Kendall, 475 F.3d 961, 964 (8th Cir. 2007). We may, for example, remand with

instructions to resentence based on the existing record. United States v. Dunlap, 452

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F.3d 747, 749 (8th Cir. 2006). Here, we restricted the court's consideration to

deciding the applicability of § 2K2.1(b)(6). We did not, however, remand with

instructions to resentence based on the trial evidence. Rather, we expressly directed

the court to conduct the proceedings necessary to make the appropriate findings. The

district court could therefore receive and consider any evidence relevant to

§ 2K2.1(b)(6) that it could have heard initially without violating our mandate. See

Kendall, 475 F.3d at 964. Bates urged the district court to reopen the record and

conduct an evidentiary hearing, and the district court did not abuse its discretion in

doing so. See United States v. Castellanos, No. 09-1456, 2010 WL 2606332, at *4

(8th Cir. July 1, 2010) (standard of review for court's decision to hold evidentiary

hearing). 

Alternatively, Bates asserts that there was insufficient evidence of trafficking. 

We disagree. He emphasizes the small quantity of drugs and the lack of evidence that

he was involved in large-scale and/or well-established distribution activities, such as

significant amounts of cash, sales records, distribution paraphernalia, or the existence

of a drug conspiracy or scheme. We have frequently considered such evidence

significant when considering whether a conviction for possession with intent to

distribute is supported by sufficient evidence. See, e.g., United States v. Thomas, 593

F.3d 752, 760 (8th Cir. 2010); United States v. Blakey, 449 F.3d 866, 869–70 (8th Cir.

2006). The government, however, has to prove the facts supporting the sentencing

enhancement only by a preponderance of the evidence. United States v. Betts, 509

F.3d 441, 445 (8th Cir. 2007). The district court could and did admit Bates's past

conviction for distributing a user quantity as evidence of motive, intent, or knowledge

of what he planned to do with the drugs. See United States v. Drapeau, 414 F.3d 869,

875 (8th Cir. 2005). As Bates's criminal history makes clear, his possession of merely

a user quantity does not foreclose the possibility that he intended to distribute it. 

Additionally, as the district court observed, Bates's denial that he ever used crack

cocaine, coupled with evidence introduced at trial that he possessed it, gave rise to an

inference that he intended to distribute it. See Thomas v. United States, 501 F.2d

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1169, 1173 (8th Cir. 1974). The court was entitled to believe that he was not a user

of crack cocaine, while disbelieving other portions of his testimony. See United States

v. Candie, 974 F.2d 61, 65 (8th Cir. 1992) ("Like any other factfinder who assesses

witness credibility, the sentencing judge is free to believe all, some, or none of a

witness's testimony."). Finally, the officers' testimony established Bates's presence

at a house and on a street known for drug trafficking, and Werninger testified that the

behavior of the car's driver and Bates was consistent with drug trafficking. 

We find no error in the court's determination that Bates engaged in drug

trafficking. The court properly applied § 2K2.1(b)(6) pursuant to Application Note

14(B). For the foregoing reasons, we affirm the judgment of the district court. 

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