United States v. Kallestad ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-50478
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES O. KALLESTAD,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(A-91-CR-175)
_________________________________________________________________
May 23, 1996
Before POLITZ, Chief Judge, JONES and BARKSDALE, Circuit Judges.
PER CURIAM:*
Charles O. Kallestad challenges his pornography sentence,
contending, inter alia, that the district court violated the law of
the case doctrine by imposing the same sentence on remand after our
court vacated Kallestad's prior sentence. We AFFIRM.
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
I.
In August 1993, following his conviction for possession of
sexually explicit photographs and videotapes involving minors, in
violation of 18 U.S.C. § 2252(a)(4)(B), Kallestad was sentenced to
six concurrent 60-month terms of imprisonment. (In a separate
trial, Kallestad was convicted for conspiracy and bank fraud. The
district court imposed concurrent prison terms for the pornography
and bank fraud offenses.)
Our court affirmed Kallestad's convictions, but vacated his
sentence and remanded for resentencing. United States v.
Kallestad, No. 93-8566 (5th Cir. Mar. 28, 1995) (unpublished). On
remand, the district court imposed the same sentence.
II.
At issue are whether the district court (1) violated both the
law of the case doctrine and the ex post facto clause, and (2)
mistakenly believed that it lacked authority to depart downward
from the Sentencing Guidelines range.
A.
1.
Kallestad maintains that our court's prior opinion precluded
the district court from imposing the same sentence on remand.
Under the law of the case doctrine,
a decision of a legal issue or issues by an
appellate court establishes the "law of the
case" and must be followed in all subsequent
proceedings in the same case in the trial or
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on a later appeal in the appellate court,
unless (1) the evidence on a subsequent trial
was substantially different, (2) controlling
authority has since made a contrary decision
of the law applicable to such issues, or (3)
the decision was clearly erroneous and would
work a manifest injustice.
Paul v. United States, 734 F.2d 1064, 1066 (5th Cir. 1984)
(citation omitted).
For the prior appeal, our court stated that the district court
should have applied the Guidelines in effect at the time of
sentencing, and that Kallestad should have been sentenced under
U.S.S.G. § 2G2.4. That section specifies a base offense level of
13. U.S.S.G. § 2G2.4(a) (1992). A cross-reference provides,
however, that another section, § 2G2.1, should be applied "[i]f the
offense involved causing, transporting, permitting, or offering or
seeking by notice or advertisement, a minor to engage in sexually
explicit conduct for the purpose of producing a visual depiction of
such conduct". U.S.S.G. § 2G2.4(c)(1) (1992).
On remand, the district court sentenced Kallestad under §
2G2.4 of the 1992 Guidelines. (The 1994 Guidelines were in effect
when Kallestad was resentenced in June 1995. We need not consider
whether they should have been applied on remand, because the 1994
and 1992 versions of §§ 2G2.1 and 2G2.4 are identical.)
Finding that Kallestad had engaged in the conduct described in
§ 2G2.4(c)(1), the court applied § 2G2.1, which provides for a base
offense level of 25. U.S.S.G. § 2G2.1(a). And, finding further
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that the offenses involved minors under the age of 16 years, the
court increased the offense level by two levels, pursuant to §
2G2.1(b)(1).
Kallestad does not challenge the district court's finding that
his offenses involved the conduct described in the cross-reference.
Instead, he maintains that his base offense level should have been
13, rather than 25, pursuant to his claim that our court's prior
opinion precludes application of the § 2G2.4(c)(1) cross-reference
and, therefore, precludes application of § 2G2.1. But, although
the prior opinion states that "a base offense level of 13 should
have been used in the first place", it states also that Kallestad's
sentence should have been calculated under § 2G2.4. Moreover, the
opinion does not address the applicability of the cross-reference,
§ 2G2.4(c)(1). Accordingly, it did not preclude application of
that cross-reference on remand.
2.
We reject the contention that application of the cross-
reference also violates the ex post facto clause. The guideline
that would have been applicable to Kallestad's offenses under the
1990 Guidelines, which were in effect when the offenses were
committed (February through October 1991), contains an identical
provision. See U.S.S.G. § 2G2.2(c) (1990).
B.
Finally, Kallestad asserts that the district court mistakenly
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believed that it had no authority to depart downward based on
Kallestad's age, medical condition, and victimization by other
inmates. The record reflects, instead, that the court was aware
that it had the authority to depart downward, but that it did not
believe such a departure was warranted.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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