United States v. Gatewood

370 F.3d 1055, 2004 U.S. App. LEXIS 11120, 2004 WL 1240906
Court of Appeals for the Tenth Circuit·Decided June 7, 2004·No. 03-3163·Published·Cited by 13 cases

Opinion

PAUL KELLY, Jr., Circuit Judge.

Defendant-Appellant Steven Joe Gate-wood pleaded 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 term of imprisonment of ninety-seven months, to be followed by three years of supervised release. In arriving at the term of ninety-seven months, the district court denied a reduction in offense level for acceptance of responsibility and enhanced the offense level for possession of three or more firearms, possession of a stolen firearm, and possession of a firearm in connection with another felony offense — specifically the distribution of methamphetamine. Mr. Gatewood appeals, contending that the district court erred in (1) refusing to grant a reduction for acceptance of responsibility; (2) enhancing the offense level for possession of three or more firearms; and (3) enhancing the offense level for possession of a firearm in connection with another felony offense. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

Background

On July 18, 2002, law enforcement officers arrived at Mr. Gatewood’s rural Kansas home in response to a 911 call regarding an accidental shooting. The officers discovered that a two-year-old child, the son of Mr. Gatewood’s girlfriend Nicole Ouimette, had died from a self-inflicted gunshot wound. A Glock 9mm semi-automatic pistol was found on the floor next to the child. An empty gun safe located in Mr. Gatewood’s bedroom was open and the key was in the lock. A second gun cabinet in the basement was also found unlocked and empty, although a 7mm rifle was found on a shelf in one of the closets. An anhydrous ammonia tank was also found in a shed behind the residence.

*1058 The police interviewed everyone at the scene, including Mr. Gatewood, Ms. Oui-mette, and Christina Gatewood, Mr. Gate-wood’s niece. All three maintained that they had been sleeping and did not hear the gunshot. They also maintained that the gun had been locked in the gun safe, and that they assumed the child must have found the key and unlocked the safe in order to obtain the weapon. The keys to the safe were kept on the headboard of Mr. Gatewood’s bed. 5 R. at 4-5, ¶ 10-11.

Mr. Gatewood acknowledged that the gun was his and told the police Ms. Oui-mette had given him the gun just a few weeks earlier. He did inform the police that he was illegally in possession of the weapon due to his prior felony conviction. He also admitted that he had been trafficking in methamphetamine but maintained that he had been “clean” for about two months. He stated that people nevertheless still frequently came to his home looking for methamphetamine. Id. at 5, ¶ 12-13.

Ms. Ouimette informed investigators that she had moved in with Mr. Gatewood only a few weeks before the shooting. Originally she told the officers that she had purchased the pistol for her own protection. She later said that she purchased the gun for Mr. Gatewood, even though she knew he was a convicted felon and could not be in possession of the gun. Id. at 5, ¶ 14. In a subsequent interview, she admitted that the previous statement was a story concocted with Mr. Gatewood and told the police the gun was Mr. Gatewood’s and that he was in possession of the gun before she moved in with him. Id. at 7, ¶ 22. Ms. Ouimette also told police she had received methamphetamine from Mr. Gatewood just two or three days before the shooting. Id. at 5, ¶ 15.

Upon further investigation, the officers received additional information from various sources about Mr. Gatewood’s illegal conduct. They learned that five other people had been at the residence early in the morning before the shooting. Mike Bacon, a person known by law enforcement as a “methamphetamine cook,” had been living with Mr. Gatewood and was at the house the morning of the shooting. Id. at 6, ¶ 17. Mr. Bacon left the house before the police arrived and took with him a shotgun and a rifle when he left. Id. at 7-8, ¶ 23, 28, 29.

Several people made statements to investigators regarding Mr. Gatewood’s possession of guns and drug use. In addition to the Glock pistol and the rifle found at the residence on the day of the shooting, there was evidence Mr. Gatewood was in possession of at least one other firearm. Various people spoke with investigators regarding a black pistol, different from the Glock, that Mr. Gatewood had in his possession. They also told the police he often left the gun out of the safe and unattended. On one occasion, Mr. Gatewood answered the door with a gun aimed at his visitors and then went into a back room where he was cutting up methamphetamine. Id. at 7, ¶ 21.

On February 10, 2003, Mr. Gatewood pleaded guilty to possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g). As part of the plea agreement, the government agreed to (1) recommend a sentence at the low-end of the applicable guideline range; (2) recommend that Mr. Gatewood receive a three-level reduction in the applicable offense level for acceptance of responsibility; and (3) not request an upward departure so long as the defendant did not request a downward departure. 1 R. Doc. 30, Att. 1 at 2-3.

At the change of plea hearing, Mr. Gate-wood received the government’s petition to revoke his conditions of release (bond) based upon positive tests for methamphet *1059 amine. A hearing on the revocation of Mr. Gatewood’s conditions of release was scheduled for that afternoon. At the hearing, the court heard testimony from the probation officer who was supervising Mr: Gatewood’s release regarding six sweat patches worn by him during the period of his pretrial release that had tested positive for methamphetamine use. The court also accepted into evidence the laboratory reports reflecting the positive drug tests. The court found by clear and convincing evidence that Mr. Gatewood had violated the conditions of his release and ordered that he be detained pending sentencing. 3 R. Doc. 54 at 25-26.

Prior to sentencing, a presentence report was prepared. The report recommended that Mr. Gatewood’s offense level not be reduced for acceptance of responsibility based on his use of controlled substances while on bond. 5 R. at 12. The report also recommended that the offense level be enhanced for possession of three of more firearms, possession of a stolen firearm, and possession of a firéarm in connection with another felony. Id. at 11. Mr. Gatewood filed an objection to the recommendations. 1 R. Doc. 40.

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United States v. Gatewood, 370 F.3d 1055, 2004 U.S. App. LEXIS 11120, 2004 WL 1240906 (10th Cir. 2004).

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