United States v. Vernon Wood , 376 F. App'x 638 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3302
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Vernon Dale Wood, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 15, 2010
Filed: May 17, 2010
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Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.
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PER CURIAM.
This is Vernon Dale Wood’s second appeal of his sentence. A jury convicted
Wood of being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1), and
being a felon in possession of ammunition, see 18 U.S.C. § 921(g)(1). At his first
sentencing, the parties disputed (1) whether Wood’s prior felony convictions for
walkaway escape and compelling prostitution each qualified as a “violent felony”
under the Armed Career Criminal Act (“ACCA”), see 18 U.S.C. § 924(e) and
U.S.S.G. § 4B1.4 (providing in cases such as this one that the offense level for an
armed career criminal is the greater of the offense level from Chapters Two and Three,
or level 34); (2) whether a four-level enhancement to Wood’s base offense level was
appropriate under U.S.S.G. § 2K2.1(b)(6) because Wood possessed a firearm in
connection with another felony offense; and (3) whether a two-level enhancement was
warranted under U.S.S.G. § 3C1.1 for obstruction of justice based on the
Government’s claim that Wood perjured himself at trial. Based on the law of our
circuit at the time, the district court1 found that Wood’s walkaway escape and
compelling prostitution convictions qualified as violent felonies and that Woods
should be sentenced as an armed career criminal. The district court recognized that
“the obstruction and the commission of another felony [enhancements] are irrelevant
if he’s an armed career criminal” because even with these enhancements Wood’s
offense level under Chapters 2 and 3 of the Guidelines was less than 34. The court
nevertheless ruled on the two potential enhancements, saying “I don’t know if this will
be an issue on appeal, but I’ll give it to you in case you have something. If I’m wrong
on the armed career criminal, I think I need to address this.” The district court then
found that Wood possessed the firearm in connection with another felony offense
under § 2K2.1(b)(6), but denied the § 3C1.1 obstruction of justice enhancement. The
district court sentenced Wood to 280 months’ imprisonment, after determining an
advisory sentencing guidelines range of 262 to 327 months based on Wood’s status
as an armed career criminal. The district court also imposed special supervised release
conditions, including requiring Wood to register as a sex offender, banning Wood
from accessing the internet without consent and monitoring from the probation office,
and prohibiting Wood from having unmonitored contact with children.2
Wood appealed only the district court’s finding that he qualified as an armed
career criminal. While that appeal was pending, the U.S. Supreme Court decided
1
The Honorable Robert W. Pratt, Chief Judge, United States District Court for
the Southern District of Iowa.
2
Among other convictions, Wood’s criminal history includes a 1989 conviction
for sexual abuse of a child, a 2001 conviction for failing to register as a sex offender,
and a 2003 conviction for supplying alcohol to minors.
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Chambers v. United States, 555 U.S. ---, 129 S. Ct. 687 (2009), holding that a failure
to report for detention is not a violent felony within the meaning of the ACCA. The
United States filed a motion in this court to remand Wood’s case, stating that “[t]he
sole issue in this case is whether Wood was properly sentenced as an [a]rmed [c]areer
[c]riminal.” Wood concurred in that motion. We then remanded his case to the
district court “for resentencing in light of the Supreme Court’s decision in
[Chambers].”
On remand, the Government abandoned its argument that Wood was an armed
career criminal. Turning to the original offense level calculation, Wood again
challenged the four-level enhancement under § 2K2.1(b)(6). The district court
interpreted our remand order as limiting the resentencing hearing to the issue of
whether Wood qualified as an armed career criminal after Chambers. As a result, the
district court refused to address anew the § 2K2.1(b)(6) enhancement. Including this
enhancement, Wood’s advisory guidelines range was 92 to 115 months. The district
court sentenced Wood to 100 months’ imprisonment and imposed the same special
conditions of supervised release as it had at the initial sentencing.
In this appeal, Wood initially argues that the district court incorrectly
interpreted our mandate as restricting his resentencing solely to the armed career
criminal issue. On the merits, Wood argues that the district court lacked an
evidentiary basis to support the § 2K2.1(b)(6) enhancement. Wood also argues that
the conditions of his supervised release are greater deprivations of liberty than
necessary to achieve the goals of 18 U.S.C. § 3583(d).
We conclude that Wood waived these sentencing issues when he failed to raise
them in his first appeal. “A defendant does not receive a second chance to support an
argument he failed to support in a first appeal simply because he is resentenced.”
United States v. Walterman, 408 F.3d 1084, 1086 (8th Cir. 2005) (quoting United
States v. Stuckey, 255 F.3d 528, 531 (8th Cir. 2001)). “Where a party could have
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raised an issue in a prior appeal but did not, a court later hearing the same case need
not consider the matter.” United States v. Kress, 58 F.3d 370, 373 (8th Cir. 1995); see
also United States v. Palmer, 297 F.3d 760, 767 (8th Cir. 2002). Indeed, at the
resentencing the Government did not attempt to re-litigate the denial of the obstruction
of justice enhancement, correctly recognizing that it waived the issue by failing to
cross-appeal. Because Wood waived the underlying challenges to the four-level
enhancement under § 2K2.1(b)(6) and to the special conditions of supervised release
by failing to raise them in his initial appeal, we need not address the issue of whether
the district court properly interpreted our mandate in the original appeal. We affirm
Wood’s sentence.
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