Opinion
CR. No. 94-25-E
December 12, 2001
ORDER
Defendants Ossie Orlando McCauley, III, Morris Ramsey, and Jaja Zambrowski Davis are before the court for resentencing pursuant to a judgment of the Eleventh Circuit Court of Appeals, issued August 8, 2001. Before resentencing proceeds, this court must determine whether these defendants are entitled to an entirely new sentencing hearing or whether the evidence presented and findings made at previous sentencings will suffice. Defendants have each filed a brief supporting their contention that an entirely new sentencing is appropriate the government opposes such argument, arguing that the Eleventh Circuit mandate restricted the range of issues that may be considered on remand. For the reasons contained herein, this court agrees with the government.
I. BACKGROUND
Defendants were convicted of drug conspiracy and distribution charges in 1994. Their convictions were upheld despite direct appeal; however, their sentences were vacated on collateral attack pursuant to 28 U.S.C.A. § 2255, as the district court did not make individualized drug findings for each member of the conspiracy. At resentencing, the district court received new evidence on drug quantity, made individualized findings, and resentenced defendants. Defendants appealed their new sentences. During the pendency of that appeal, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). Relying on the Apprendi decision, the Eleventh Circuit again found fault with the sentencing of defendants and again vacated the sentences and remanded for resentencing.
The Eleventh Circuit explicitly considered six issues on this last appeal: "whether the district court properly (1) resentenced Appellants de novo, (2) denied Appellants' requests for downward departure based on sentencing disparity, (3) denied Appellant's requests for downward departures due to "post-conviction rehabilitation," (4) exceeded the applicable maximum sentence prescribed by 21 U.S.C. § 841 in violation of Apprendi (5) enhanced Appellants' sentences for use of a firearm, and (6) enhanced the sentences of Appellants McCauley and Davis for their roles as managers/supervisors." United States v. Davis et al., No. 00-11608, at 3 (11th Cir. August 8, 2001). Beyond those issues explicitly considered by the Eleventh Circuit, defendants also raised on appeal the issue of the amount of drugs attributable to them for sentencing purposes. This argument was indeed a focus of the appellate briefs. The appellate court implicitly considered this argument, as well as other arguments raised by defendant but not explicitly discussed in the body of the judgment, by adding that they "affirm without discussion any remaining issues raised by Appellants," id. at 3 n. 3, and by stating that "in all other respects [than Apprendi], however, we find no merit in Appellants' arguments on appeal and affirm the district court." Id. at 19.
Brief of Appellant McCauley, at 10-12; Brief of Appellant Davis, at 15-17; Brief of Appellant Ramsey, at 17-18.
As the nature of the remand will be critically important in determining the issue now before this court, it seems prudent to quote in their entirety, the parting paragraphs of the Eleventh Circuit opinion:
"In conclusion, the district court sentenced Appellants without the benefit of the intervening rule announced in Apprendi. In that respect, we vacate the sentences of Appellants Davis, McCauley, and Ramsey and remand for resentencing or a new trial. In all other respects, however, we find no merit in Appellants' arguments on appeal and affirm the district court.
"AFFIRMED IN PART, VACATED IN PART, AND REMANDED."
Id. at 19.
II. DISCUSSION A. GENERAL POSTURE
The question in this case results from the convergence of two facially opposed doctrines: the holistic approach to resentencing and the mandate rule. When a criminal sentence is vacated, the district court is generally free to reconstruct the sentence using any of the sentencing components — the "slate is wiped clean" by the vacatur. United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996); United States v. Cochran, 883 F.2d 1012, 1017 (11th Cir. 1989). "If this were not the effect of [the] vacatur, [the appellate court] would have removed the illegal portion of the sentence and simply recalculated the sentence, instead of remanding to the district court for a time-consuming and expensive hearing." Stinson, 97 F.3d at 469.
However, the Eleventh Circuit also has a well-settled mandate rule, which stems from the law-of-the-case doctrine, "obligating district courts to adhere closely to the dictates of [the Eleventh Circuit's] opinions." Pelletier v. Zweifel 987 F.2d 716, 718 (11th Cir. 1993). Generally speaking, when an appellate court renders a decision and remands the case, the appellate court's factual or legal decisions must be followed unless one of three circumstances is present: (1) there has been an intervening change in the law, or (2) new evidence has been discovered and presented, or (3) the appellate court decision is clearly erroneous and would work a manifest injustice. Paimbino v. Bailey, 757 F.2d 1112, 1120 (11th Cir. 1985). The trial court is, however, free to address any issues not disposed of on appeal. Id. at 1119. When a limiting mandate is issued by the appellate court, the trial court is simply restricted in the range of issues to consider on remand, possibly even to consideration only of the specific issues identified by the appellate court as deserving of reconsideration. United States v. Tamayo, 80 F.3d 1514, 1519-20 (11th Cir. 1996); United States v. Rogers, 848 F.2d 166, 169 (11th Cir. 1988)
In Tamayo, defendant was convicted of laundering money and various firearms offenses. He appealed his sentence, which was vacated by the Eleventh Circuit. The Eleventh Circuit specifically remanded "for resentencing in light of our decision in United States v. Rockman" and further stated that "we see no merit in Tamayo's objections to his sentence other than the [Rockman] issue discussed infra." 80 F.3d at 1516. On remand, defendant asked the court to reconsider all factors that affected the overall sentence. Id. The district court refused to depart from its prior rulings on all issues, excepting only the Rockman remanded issue. Id. at 1517. Defendant objected to the district court's refusal to consider new arguments or re-argument over issues decided at the previous sentencing.
The Eleventh Circuit affirmed the district court, stating that, given the language of the previous mandate, the panel "foreclosed the district court's addressing any sentencing issues that previously had been raised concerning the original sentence." Id. at 1520. The Eleventh Circuit noted that it has been explicit when it is vacating an entire original sentencing package rather than remanding for resentencing on a single issue. Id. at 1520 n. 7 (citing United States v. Williams, 2 F.3d 363, 365 (11th Cir. 1993), in which the court's order stated "we vacate Williams' sentence in its entirety and remand this case to the district court with instructions to fashion a new sentence which is not inconsistent with this opinion and with Tatum" (emphasis added by theTamayo court)). On a limited mandate, the entire sentencing process should not be reopened:
"[T]he convicted defendant had the opportunity to rebut the presentence report and to allocute at the original sentencing hearing, where the sentencing judge made credibility determinations and fashioned an appropriate sentence for the defendant's conduct and level of culpability. . . . Thus, reconsideration or correction of a portion of a sentence can be remedied on remand, provided the modification does not make the sentence more onerous, but the whole sentencing process need not start anew."Tamayo, 80 F.3d at 1519 (internal citations and quotations omitted). In addition, that court noted that "an appellate vacation of judgment for consideration in light of a particular decision is `much more limited in nature' than a general vacation by an appellate court, and its effect is "not to nullify all prior proceedings.'" Id. at 1520, quoting United States v. M.C.C. of Florida, Inc., 967 F.2d 1559, 1562 (11th Cir. 1992).
There are no distinguishing characteristics between the case now before this court and Tamayo. The Eleventh Circuit's judgment in this case is obviously quite limiting. Analyzing the final paragraph indicates a variety of language that illustrates this point:
"In conclusion, the district court sentenced Appellants without the benefit of the intervening rule announced in Apprendi. In that respect, we vacate the sentences of Appellants Davis, McCauley, and Ramsey and remand for resentencing or a new trial. In all other respects, however, we find no merit in Appellants' arguments on appeal and affirm the district court.
"AFFIRMED IN PART, VACATED IN PART, AND REMANDED."
(emphases added). This language is strikingly similar to that quoted fromTamayo. it identifies a particular case as being the basis for vacating the sentence, specifically limits its vacatur of the sentence to that issue ("vacated in part"), and specifically affirms the actions of the district court regarding the other appealed issues.
The Eleventh Circuit's mandate in this case clearly foreclosed reconsideration of the issues explicitly or necessarily decided therein, unless certain exceptions to the law-of-the-case rule are shown to exist. New arguments and evidence on these issues is simply a waste of time. The evidence has all been presented before, this court has already made credibility determinations and has weighed the evidence. It stretches logic to require a wholesale restart of the sentencing process following this remand, which explicitly and implicitly affirms every action of this court at the previous resentencing, excepting only theApprendi issue that arose during appeal. Therefore, while the vacatur of defendants' sentences requires resentencing, given the limited nature of the remand, an entirely new sentencing hearing is not proper. In this case, the Eleventh Circuit mandate restricted the scope of resentencing to the Apprendi issue. It was for that purpose and that purpose alone that the case was remanded.
It cannot be denied that other circuits have been more specific in their instructions on remand for Apprendi violations. See, e.g., United States v. Nordby, 225 F.3d 1053, 1061 (9th Cir. 2000) ("We accordingly remand to the district court for resentencing subject to the maximum sentence supported by the facts found by the jury beyond a reasonable doubt, consistently with Apprendi and this opinion.") United States v. Allen, 2001 WL 578502, at *2 (10th Cir. May 30, 2001) (unpublished opinion) ("For the reasons stated, defendant's conviction is AFFIRMED, and the case is REMANDED with directions to vacated defendant's sentence and resentence him within the statutory range authorized by 21 U.S.C. § 841 (b)(1)(C)."). However, as the only appealed issue that the Eleventh Circuit found merit in was Apprendi, its mandate, given the language therein, must be considered to be limited to that reconsideration.
Therefore, with respect to the range of issues appealed, resentencing will proceed only on the Apprendi issue, barring a showing that a prior decision by this court or by the Eleventh Circuit should be reconsidered or a new issue should be considered because of an intervening change in the law, the discovery of new evidence, or because the decision was clearly erroneous. The prior rulings of this court, either those affirmed implicitly or explicitly on appeal, or those not appealed, are not disturbed by the Eleventh Circuit's ruling and will remain in effect.Tamayo, 80 F.3d at 1519-20 n. 6 (affirming district court's decision not to reopen issues decided at previous sentencing following a limited mandate from the Eleventh Circuit).
Based on this general framework, and as defendants have raised several issues in their preliminary briefs for this resentencing, the court will identify specifically those arguments that may be entertained.
B. FORECLOSED ISSUES 1. DRUG QUANTITY
Defendants raised the issue of the quantity of drugs attributable to them on appeal. The Eleventh Circuit implicitly affirmed this court's findings on drug quantity by stating that they "affirm without discussion any remaining issues raised by Appellants." There is no reason to re-open this issue, and the court will not disturb its prior ruling on the amount attributable to each of these defendants.
McCauley's reliance on United States v. Jones, 36 F.3d 1068 (11th Cir. 1994), is misplaced. In Jones, defendant's sentence was vacated by the Eleventh Circuit and remanded for consideration in light of United States v. Crespo, 982 F.2d 483 (11th Cir. 1993). The Crespo case involved the proper calculation of drug quantity when the actual capacity of drugs defendant was able to produce is different from the quantity defendant claimed to possess or be able to distribute. 982 F.2d at 485. Jones was involved in a marijuana distribution conspiracy, involving a deal in which he delivered a smaller amount of drugs but claimed to be able to supply a much larger amount. At the original sentencing, the district court assigned Jones responsibility, for that deal, for the larger amount of marijuana. On remand, the district court reconsidered the amount of marijuana attributable to Jones for the entire conspiracy, not just the amount attributable to Jones for that particular deal. In that case, the scope of the remand was the drug-quantity issue, and the district court was free to consider all arguments related to that issue. It was not free to re-consider other collateral arguments to the drug-quantity issue that had in fact been decided on appeal.
In distinguishing Jones, it is necessary to perceive clearly the difference between the Apprendi issue on which this case was remanded and the drug-quantity issue. The effect of the Apprendi decision is to limit the imposition of punishment to the statutory maximum for the crime charged in the indictment and under which defendants were convicted. In this case, in which a quantity of drugs was not charged in the indictment and not found by the jury, this limit is the statutory maximum for an unspecified quantity of drugs, which amounts to 20 years. The Apprendi case has no bearing on the prroper measure of drugs attributable to each defendant during sentencing.
On this note, it should be recognized that McCauley's insistence that new findings on drug quantity should be made at this sentencing is not supported by the cases to which he cites for that proposition. InUnited States v. Jackson, 240 F.3d 1245 (10th Cir. 2000), United States v. Randle, 259 F.3d 319 (5th Cir. 2001), and United States v. Cotton, 261 F.3d 397, 407 (4th Cir. 2001), the appellate courts remanded for resentencing up to the statutory maximum, not for a new hearing on drug quantity.
The quantity of drugs attributable to each defendant defines, to a great extent, the offense level under the Sentencing Guidelines and, consequently, the guideline range of inprisonment for the offense. Given the quantity of drugs properly found attributable to these defendants at the prior resentencing, the Sentencing Guidelines prescribed a range that exceeded the 20-year maximum. After Apprendi, the correct procedure by which to sentence these defendants is to sentence them to the statutory maximum for that count of conviction. This corrective procedure does not involve a recalculation of the attributable drug quantity and, therefore, does not reopen the drug-quantity issue for examination.
2. ROLE ENHANCEMENT
McCauley also argues that the three-level increase in his offense level for role in the offense should be reconsidered because its affirmance by the Eleventh Circuit was clearly erroneous. This court, recalling the evidence presented at trial and at preceding sentencing hearings, does not believe that is the case. The court will not entertain arguments or evidence pertaining to the role enhancement at the new sentencing hearing.
3. DUE PROCESS REQUIREMENTS
McCauley now argues that the due process clause restricts the use of relevant conduct in determining the appropriate sentence. He contends that this information, not presented in the indictment and not submitted to the jury and found to exist beyond a reasonable doubt, should not be considered unless, at the very least, it is proven by a heightened standard of evidence.
The Eleventh Circuit has expressly held that a preponderance of the evidence standard generally applies at sentencing and complies with the requirements of due process. United States v. Jackson, 57 F.3d 1012 (11th Cir. 1995); United States v. Restrepo, 832 F.2d 146 (11th Cir. 1987). However, the argument made by McCauley is a bit more specific: he is arguing that when relevant conduct has such an extraordinary effect on the length of the sentence imposed, it must be presented in accordance with a higher burden of proof in order to comply with due process. Other circuits have accepted this argument. United States v. Smith, 208 F.3d 1187, 1189 (10th Cir. 2000); United States v. Valensia, 222 F.3d 1173, 1182 (9th Cir. 2000); United States v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999); United States v. Kikimura, 918 F.2d 1084, 1100-01 (3d Cir. 1990). The Eleventh Circuit has not foreclosed the possibility that some situations may exist that require the use of a higher standard of proof for the use of relevant conduct in sentencing. United States v. Lewis, 115 F.3d 1531, 1537 (11th Cir. 1997)
However, this issue is not a new one. This court determined at the prior resentencing that the correct standard of proof for the use of this evidence was a preponderance of the evidence. The issue could have been appealed at that time. Because of the limited mandate under which this court is operating, the due process issue is foreclosed to McCauley.
While this court identified preponderance of the evidence as the applicable standard, it also conservatively estimated the amount of drugs attributable to each defendant. Order at 16 n. 11, 17 n. 15, 19 nn. 18 20, United States v. Fears et al., No. 94-25-E (M.D. Ala. December 27, 2000). Applying the clear-and-convincing standard, the court remains convinced as to all its factual findings on relevant conduct and, in particular, as to the amount of drugs attributable to each defendant.
Two of defendants in this case at least obliquely appealed the issue. Brief of Appellant Ramsey, at 11-12 (discussing the district court's duty to determine that the evidence of drug quantity is sufficiently reliable to be used as a basis for sentencing); Brief of Appellant Davis, at 17 (same).
4. DOWNWARD DEPARTURE FOR "UNFAIRNESS"
McCauley now argues that he should receive a downward departure to avoid unfairness because his sentencing guideline range has been dramatically increased due to enhancements, without the court having applied a heightened standard of proof. United States v. Valensia, 222 F.3d 1173, 1182 (9th Cir. 2000), United States v. Gigante, 94 F.3d 53, 56-57 (2d Cir. 1996), and United States v. Lombard, 72 F.3d 170 (1st Cir. 1995). This argument is functionally identical to the due process argument discussed above, and for substantially the same reasons it is foreclosed.
C. PENDING ISSUES 1. APPRENDI RESENTENCING
The effect of an Apprendi remand is to require the district court to sentence defendants to a term of imprisonment up to the maximum allowable for the offense actually presented to the jury and proved beyond a reasonable doubt. In this case, that maximum can be found in 21 U.S.C.A. § 841(b)(1)(C), 20 years.
In resentencing defendants as to all counts of conviction, the government asserts that U.S.S.G. § 5G1.2 (d) outlines the proper procedure: "If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extant necessary to produce a combined sentence equal to the total punishment." In this case, according to the government, the count carrying the highest statutory maximum is the aforementioned 21 U.S.C.A. 841(b)(1)(C), carrying a maximum sentence of 20 years for the distribution count as well as the conspiracy count, given an unspecified amount of drugs. Given the amount of drugs attributable to each defendant, the government argues that each of the sentencing ranges will exceed this 20-year maximum; therefore, the sentences for convictions on the other counts should be imposed consecutively at resentencing in a manner consistent with U.S.S.G. § 5G1.2 (d) and the corresponding Guidelines sentencing range.
Although the government makes this argument in its brief, the court feels that it should withhold further consideration until defense counsel and the probation officer are given an opportunity to respond to this method of calculation at resentencing.
2. FIREARM ENHANCEMENT FOR MCCAULEY
The propriety of the two-level increase in the applicable offense level for possession of a firearm under U.S.S.G. § 2D1.1 (b)(1) for McCauley was considered on appeal and affirmed by the Eleventh Circuit. However, because an intervening change in the law requires re-consideration of the firearm enhancement given to McCauley at the preceding sentencing, the court will again take up this issue at resentencing. Paimbino, 757 F.2d at 1120. Both the government and McCauley agree that this is the correct outcome.
According to the new application note to U.S.S.G. § 2K2.4, which covers the proper sentence for violations of 18 U.S.C.A. § 924(c) among other statutes, "If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense characteristic for possession, brandishing, use, or discharge of an explosive or firearm when determining the sentence for the underlying offense." As McCauley was also charged with and convicted of violating § 924(c), under the new guideline, a two-level weapon enhancement is not appropriate.
3. DOWNWARD DEPARTURE FOR ASSISTANCE IN PRISON RIOT
This issue raised by McCauley qualifies as new evidence not present at the prior sentencings. From brief consideration of the issue from the submissions of the parties, it would seem that this new development, might provide a basis for a departure. More discussion of this issue should be pursued at resentencing.
III. CONCLUSION
Therefore, it is ORDERED that the resentencing of defendants Ossie Orlando McCauley, III, Morris Ramsey, and Jaja Zambrowski Davis:
(1) is to be conducted in a manner consistent with this order, and
(2) is reset for December 21, 2001, at 10:00 a.m., in the second floor courtroom of the United States Courthouse in Montgomery, Alabama.
It is further ORDERED that defendants and the probation officer are to submit to the court by no later than December 19, 2001, their calculations for resentencing based on U.S.S.G. § 5G1.2 (d).
DONE, this the 12th day of December, 2001.