United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 6, 2012 Decided July 13, 2012

No. 09-3096

UNITED STATES OF AMERICA,

APPELLEE

v.

LANCE LAMONT GATLING,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:94-cr-00298-1)

Beverly G. Dyer, Assistant Federal Public Defender, 

argued the cause for appellant. With her on the briefs was A.J. 

Kramer, Federal Public Defender. Neil H. Jaffee, Assistant 

Federal Public Defender, entered an appearance.

Suzanne Grealy Curt, Assistant U.S. Attorney, argued the 

cause for appellee. With her on the brief were Ronald C. 

Machen Jr., U.S. Attorney, and Roy W. McLeese III and 

Elizabeth Trosman, Assistant U.S. Attorneys.

Before: SENTELLE, Chief Judge, GRIFFITH, Circuit Judge, 

and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.
2

GRIFFITH, Circuit Judge: Lance Lamont Gatling appeals 

the district court’s denial of his motion to modify his 

sentence. For the reasons set forth below, we affirm the 

district court. 

I

On July 8, 1994, Gatling entered the apartment of an 

undercover agent of the Bureau of Alcohol, Tobacco, 

Firearms, and Explosives to sell him cocaine. The deal went 

awry, and Gatling pulled a gun and shot and wounded the 

agent. Police backup responded to the wounded agent’s call 

for help and arrested Gatling. In 1995, a jury convicted him of 

multiple offenses related to the shooting, including possession 

of a firearm as a convicted felon, 18 U.S.C. § 922(g)(1) 

(1989), but the jury also acquitted him of attempted murder of 

a federal employee, 18 U.S.C. § 1114 (1989), and assault with 

intent to commit robbery while armed, D.C. Code §§ 22-

501, 22-3202 (1993). United States v. Gatling, 639 F. Supp. 

2d 4, 5 (D.D.C. 2009). Gatling was sentenced to 270 months 

in prison, and we affirmed his conviction and sentence on 

appeal. United States v. Gatling, 107 F.3d 923 (D.C. Cir. 

1996). He now argues that he is entitled to a hearing on 

whether his sentence should be reduced. Assessing his claim 

requires that we venture into the labyrinth that is the United 

States Sentencing Guidelines. 

Gatling brought his motion pursuant to 18 U.S.C. 

§ 3582(c)(2), which provides:

[I]n the case of a defendant who has been sentenced to a 

term of imprisonment based on a sentencing range that 

has subsequently been lowered by the Sentencing 

Commission . . . upon motion of the defendant . . . the 

court may reduce the term of imprisonment . . . if such a 
3

reduction is consistent with applicable policy statements 

issued by the Sentencing Commission.

Id. Gatling’s argument begins with U.S.S.G. § 1B1.10(a)(1), 

which states: 

In a case in which a defendant is serving a term of 

imprisonment, and the guideline range applicable to that 

defendant has subsequently been lowered as a result of an 

amendment to the Guidelines Manual listed in subsection 

(c) below, the court may reduce the defendant’s term of 

imprisonment as provided by 18 U.S.C. § 3582(c)(2).

U.S. SENTENCING GUIDELINES MANUAL § 1B1.10(a)(1)

(2011). Subsection (c), in turn, lists Guidelines Amendment 

591 as a ground for reduction. Amendment 591 became 

effective on November 1, 2000, and provides that the 

selection of a defendant’s offense conduct guideline (the 

starting point for determining the seriousness of an offense, 

and therefore its sentence) must be based only on convicted 

conduct. See U.S. SENTENCING GUIDELINES MANUAL app. C, 

amend. 591 & cmt. (2003). 

Relying on the change wrought by Amendment 591, 

Gatling argues that his sentence should be reduced. He claims 

the sentencing court based his offense conduct guideline on 

attempted murder, of which he was acquitted, rather than 

felon in possession of a firearm, of which he was convicted.

Attempted murder has a higher Guideline range than felon in 

possession of a firearm.1

 1 Gatling was also convicted of dealing cocaine, which carried 

a maximum statutory sentence of forty years. Gatling, 639 F. Supp. 

2d at 9.

According to Gatling, Amendment 

591’s bar on beginning a sentencing calculation with 
4

acquitted conduct lowers a sentencing range, triggering the 

protections afforded by 18 U.S.C. § 3582(c)(2).

2 Gatling 

argues he is entitled to the benefit of this change in the law 

and seeks a hearing under § 3582(c)(2) to see if his sentence 

should be reduced. 

The district court disagreed. Reviewing the transcript of 

the sentencing hearing and the presentencing reports 

submitted by the parties, the court identified the three steps it 

took to reach Gatling’s ultimate sentence. Gatling, 639 F. 

Supp. 2d at 9. The court explained that it started at Sentencing 

Guideline § 2K2.1, which covers convictions for felons in 

possession of a firearm and provides that “[i]f the defendant 

used or possessed any firearm or ammunition in connection 

with the commission or attempted commission of another 

offense, . . . apply . . . § 2X1.1 (Attempt, Solicitation, or 

Conspiracy) . . . .” U.S. SENTENCING GUIDELINES MANUAL

§ 2K2.1(c)(1) (2003). Following that cross-reference, the 

court turned to § 2X1.1, which instructs, “When an attempt,

solicitation, or conspiracy is expressly covered by another 

offense guideline section, apply that guideline section.” Id. 

§ 2X1.1(c)(1). Having concluded from a preponderance of the 

evidence that Gatling had attempted to kill the agent, the court 

followed the direction of § 2X1.1(c)(1), looked to the 

guideline for attempted murder, § 2A2.1, and entered a 

sentence within its suggested range. Gatling, 639 F. Supp. 2d 

at 9. Gatling appealed to us, and we exercise jurisdiction 

under 18 U.S.C. § 1291. 

 2 As the district court noted, there is some skepticism 

regarding whether Amendment 591 “falls within the sweep of 

§ 3582(c)(2).” Gatling, 639 F. Supp. 2d at 6 n.2. Because we find 

that the sentencing court did not choose attempted murder as the 

offense conduct guideline, we need not resolve this issue. 
5

II

We now face a question of fact — what happened at the 

sentencing hearing — and review the district court’s 

determination for clear error. See United States v. Edwards, 

496 F.3d 677, 683 (D.C. Cir. 2007); Appellant’s Br. 15. We 

conclude that the district court did not clearly err by finding 

that it reached Gatling’s ultimate sentence by starting with 

§ 2K2.1. 

At the hearing, the district court announced that Gatling’s 

sentence would reflect that a preponderance of the evidence 

had shown that he attempted to murder the federal agent. See 

United States v. Settles, 530 F.3d 920, 923 (2008) (“[A]

sentencing judge may consider uncharged or even acquitted 

conduct in calculating an appropriate sentence, so long as that 

conduct has been proved by a preponderance of the evidence 

and the sentence does not exceed the statutory maximum for 

the crime of conviction.”). Because attempted murder carried 

a longer sentence than felon in possession of a firearm,

Gatling tried (unsuccessfully) to convince the court that he 

should be sentenced to the lesser amount. While the thrust and 

details of this argument are of no concern to this appeal, one 

part of his counsel’s presentation is. He retraced the 

convoluted steps the Guidelines prescribe, starting with 

§ 2K2.1, the guideline for the crime for which Gatling was 

convicted:

 

[T]he way the Court got to section 2A2.1, the attempted 

murder guideline, was by way of section 2K2.1, which 

applies to the gun offenses in this case. That contains a 

cross-reference at section 2K2.1(c). . . . It is this crossreference provision in section 2K2.1 that after a few 

twists and turns leads the Court back to 2A2.1. 2K2.1 
6

sends the Court to 2X1.1, the attempt provision, and 

2X1.1 then refers the Court back to 2A2.1. That’s how 

the Court can get there by operation of the guidelines for 

the gun count . . . . 

Sentencing Tr. 51:25-52:19, Sept. 19, 1995. 

The court’s conclusion that it began with § 2K2.1 also 

squares with Gatling’s argument in his 1995 Presentencing 

Memorandum that the court should start there:

If the Court decides to sentence Mr. Gatling for 

attempted murder of which the jury acquitted him, the 

Court must still consider U.S.S.G. § 2K2.1. That 

guideline contains a cross-reference that directs the court 

to . . . look to U.S.S.G. § 2X1.1, which . . . also contains a 

cross-reference provision. . . . The application notes to

§ 2X1.1 state that “[o]ffense guidelines that expressly

cover attempts include . . . § 2A2.1.”

Def.’s Mem. in Aid of Sentencing 15-16. The Government’s 

Presentence Investigation Report also recommended that the 

sentencing court begin calculating Gatling’s sentence from 

§ 2K2.1. Presentencing Investigation Report 6 (“Count 8 —

Possession of a Firearm . . . . The United States Sentencing 

Commission Guideline for violation of 18 U.S.C. § 922(g)(1) 

is found in U.S.S.G. § 2K2.1 . . . .”). Thus, both the 

government and the defendant proposed that the sentencing 

court start from § 2K2.1, and the sentencing court never 

indicated that it did otherwise. In fact, the transcript of the 

sentencing hearing shows that the court followed along 

carefully, flipping through the pages of the Guidelines as 

Gatling’s attorney explained how they took the court from the 

sentencing range for felon in possession of a firearm to 

attempted murder. Sentencing Tr. 52:6-7 (“Let me go back to 
7

the 2K again so I can follow this, please.”). All of this points 

in the same direction: however the sentencing court may have 

determined Gatling’s sentence, it started at § 2K2.1.

Arguing that the court started the calculation of his 

sentence with acquitted conduct, Gatling seizes upon the 

court’s reference to two cases that used acquitted conduct in 

sentencing, United States v. Foster, 19 F.3d 1452 (D.C. Cir. 

1994); and United States v. Boney, 977 F.2d 624 (D.C. Cir. 

1992). But as we read the transcript, the court referred to 

these cases only as support for the principle that acquitted 

conduct can be used for some purposes in sentencing, not to 

determine the offense conduct guideline. 

As Gatling concedes, neither Foster nor Boney

considered how to determine an offense conduct guideline.

Appellant’s Br. 17. They both concerned the use of acquitted 

conduct in sentencing within a selected guideline. Foster, 19 

F.3d at 251-52; Boney, 977 F.3d at 635-36. And the court 

relied upon them for the proposition that acquitted conduct

used for that purpose need only be found by a preponderance 

of the evidence. Sentencing Tr. 22:9-17 (“Ms. Kenny, on this 

matter, I think we’re guided by United States v. Foster, at 19 

F.3d 1452 in our circuit, and they also recognize U.S. v. 

Boney, 977 F.2d at 624 . . . . What is improper about the 

Court, under the guidelines . . . to consider acquitted conduct 

if it finds it has been proven appropriately by in this circuit a 

preponderance of the evidence?”); id. at 42:23-25 (“In 

reviewing the evidence, the Court has tried to carefully 

consider whether or not it’s satisfied, as I said, by a 

preponderance of the evidence . . . .”); id. at 43:9-11 (“Using 

Foster, by finding a preponderance of the evidence, the Court 

will reject the defendant’s request to follow the Third 

Circuit’s Kikamura decision requiring clear and convincing 

evidence . . . .”). In any event, the discussion of these cases 
8

occured before Gatling’s reminder of how the court “got” 

from § 2K2.1 to § 2A2.1, which suggests that the court first 

considered whether it could use acquitted conduct at all 

before discussing the appropriate way to reach such conduct. 

The sentencing court did mention that it was “going to 

consider the acquitted conduct under 2A2.1(b)(1),” 

Sentencing Tr. 40:21-22, which, according to Gatling, 

suggests the choice of § 2A2.1 as the offense conduct 

guideline. But this statement is equally consistent with the 

sentencing court starting from § 2K2.1, reaching § 2A2.1 via 

cross-reference, and then relying on acquitted conduct when 

applying § 2A2.1(b)(1) after permissibly arriving at that 

section. Given the wide berth we grant when reviewing 

district courts for clear error, these statements cannot offset 

what the other evidence supports: the sentencing court chose 

felon in possession as Gatling’s offense conduct guideline. 

See Am. Soc’y for the Prevention of Cruelty to Animals v. 

Feld Entm’t, Inc., 659 F.3d 13, 16 (D.C. Cir. 2011) (“[T]o 

find clear error, we must be ‘left with the definite and firm 

conviction that a mistake has been committed.’” (quoting 

United States v. U.S. Gypsum Co., 333 U.S. 364, 395 

(1948))).

This appeal underscores an important feature of modern 

federal sentencing practice: the Sentencing Guidelines have 

become increasingly complex, and the adoption of 

amendments with retroactive application has increased the 

need for sentencing courts to describe the winding path they 

followed through the Guidelines to arrive at a particular 

sentence. It is no longer enough to reach a lawful result 

without detailing the route taken to get there. Switching 

metaphors, on this playing field one cannot go from Tinker to 

Chance without mention of Evers. See Franklin P. Adams, 

Baseball’s Sad Lexicon (1910), reprinted in BASEBALL: A
9

LITERARY ANTHOLOGY 20 (Nicholas Dawidoff, ed. 2002). 

Sentencing courts must spell out the steps they take, and the 

attorneys who appear before them must lend their hand to 

help ensure the route followed is clear. 

III

The judgment of the district court is 

Affirmed.