As we previously have pointed out, there is a significant circuit split on the issue of the breadth of the scope of a mandate for resentencing on remand. United States v. Hass, 199 F.3d 749, 752 n. 2 (5th Cir. 1999) (" Hass II"); Marmolejo II, 139 F.3d at 530. A majority of jurisdictions embrace the view that unless the appellate mandate explicitly limits the sentencing issues open for consideration on remand, the district court is free to conduct a de novo resentencing hearing and is not limited only to consideration of those issues related to the remand order.
99-1694 HASS v. UNITED STATES. C.A. 5th Cir. Certiorari denied. Reported below: 199 F.3d 749. 99-1722 THOMAS TRUCK LEASE, INC., ET AL. v. LEE COUNTY, MISSISSIPPI, BY AND THROUGH ITS TAX COLLECTOR, BELK. Sup.Ct. Miss. Certiorari denied.
United Statesv. Hass , 199 F.3d 749, 751 (5th Cir. 1999). But as a general matter, "there is no abuse of discretion when a defendant has an opportunity to review the PSR and submit formal objections to it."
The drug quantity issue was therefore beyond the scope of this court's remand order, and the district court properly declined to address it. See Griffith, 522 F.3d at 610; United States v. Haas, 199 F.3d 749, 751-53 (5th Cir. 1999). Cabrera also contends that his within-guidelines sentence was substantively unreasonable because several members of a different drug conspiracy received significantly lower sentences than he did.
We review for abuse of discretion the denial of an evidentiary hearing at sentencing. United States v. Hass, 199 F.3d 749, 751 (5th Cir.1999). We lack jurisdiction to review the denial of a downward departure unless the district court's denial resulted from a mistaken belief that the Guidelines do not give it authority to depart.
In Lee, we reaffirmed "the principle that `whether a [party] waived an issue for consideration at re-sentencing [depends on] whether the party had [sufficient] incentive to raise th[at] issue in the prior proceedings.'" Lee, 358 F.3d at 324 (brackets in original) (quoting United States v. Hass, 199 F.3d 749, 753 (5th Cir. 1999)). There is no reason to suppose Wren or Lewis had any reason to argue for a decrease in his sentence.
Such is not the case here where any objection originally raised grounded on the Sixth Amendment was waived when Appellants abandoned the argument on initial appeal to this Court. See id. (citing, amongst others, United States v. Hass, 199 F.3d 749, 753 (5th Cir. 1999)). Appellants' argument that to raise Apprendi at the time of sentencing or on appeal would have been futile is not availing.
'" Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir. 2002) (quoting Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990)).But cf. United States v. Hass, 199 F.3d 749, 753 (5th Cir. 1999) ("An issue is not waived if there was no reason to raise it in the initial appeal."). IV
Therefore, contrary to the defendants' assertions, we cannot say that the Government had "ample incentive" to raise but chose to forego this issue at a prior stage of the proceedings. See id. (distinguishing United States v. Hass, 199 F.3d 749, 753 (5th Cir. 1999), cert. denied sub nom. Hass v. United States, 531 U.S. 812, 121 S.Ct. 34, 148 L.Ed.2d 14 (2000)).
This approach requires a fact-intensive, case-by-case analysis.Ticchiarelli, 171 F.3d at 32-33; see also United States v. Hass, 199 F.3d 749, 753 (5th Cir. 1999) ("[W]hether a defendant waived an issue for consideration at resentencing is determined by whether the defendant had an incentive to raise that issue in the prior proceedings."), cert. denied, 531 U.S. 812, 121 S.Ct. 34, 148 L.Ed.2d 14 (2000).