No. 99-1694
In the Supreme Court of the United States
TOMMIE HASS, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
DEBORAH WATSON
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the district court erred at resentencing by declining to reconsider
the drug quantity finding it had made at petitioner's first sentencing.
In the Supreme Court of the United States
No. 99-1694
TOMMIE HASS, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-9a) is reported at 199
F.3d 749. An earlier opinion of the court of appeals is reported at 150
F.3d 443.
JURISDICTION
The judgment of the court of appeals was entered on December 29, 1999. A
petition for rehearing was denied on January 24, 2000 (Pet. App. 20a). The
petition for a writ of certiorari was filed on April 20, 2000. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District Court for the Eastern
District of Texas, petitioner was convicted of conspiring to manufacture
and distribute methamphetamine, in violation of 21 U.S.C. 846. He was sentenced
to life imprisonment under the "three strikes" provision of 21
U.S.C. 841(b)(1)(A). The court of appeals affirmed petitioner's conviction,
but remanded for resentencing because the government had failed to prove
that petitioner had two final felony drug convictions at the time of the
commission of the instant methamphetamine conspiracy offense. 150 F.3d 450-451.
On remand, petitioner was sentenced to 240 months' imprisonment, to be followed
by a five-year period of supervised release. The court of appeals affirmed.
Pet. App. 1a-9a.
1. From 1993 to 1996, petitioner was involved in a large-scale methamphetamine
manufacturing and distribution ring known as the Anderson Organization.
The organization purchased and manufactured methamphetamine in various locations
in the Dallas, Texas, area, and distributed it throughout the United States.
Petitioner and his brother Richard were one of the organization's major
sources of methamphetamine. 150 F.3d at 445-446.
2. Petitioner was tried and found guilty of conspiring to manufacture and
distribute methamphetamine. In the Presentence Investigation Report (PSR)
prepared for petitioner's sentencing, the probation officer concluded that
petitioner and his co-conspirators possessed at least 26.8 kilograms of
methamphetamine during the course of the conspiracy, and that this amount
was a "very conservative estimate" of the total amount that petitioner
distributed. Pet. App. 2a; PSR ¶ 38. The PSR recited that the base
offense level was 36 for that amount of methamphetamine, which, combined
with petitioner's criminal history category of VI, produced a sentencing
range of 324-405 months' imprisonment. PSR ¶¶ 39, 95. The PSR
noted, however, that petitioner had three prior felony drug convictions
(PSR ¶¶ 57, 59-60), and recited that petitioner was thus subject
to a mandatory term of life imprisonment pursuant to 21 U.S.C. 841(b)(1)(A)
and Sentencing Guidelines § 5G1.1(b). PSR ¶¶ 94-95.
Petitioner filed an extensive memorandum detailing his objections to the
PSR, which included a challenge to the possible imposition of a life sentence;
the calculation of drug quantities attributed to him; and the assessment
of his criminal history. The government filed a response to petitioner's
objections, including a response to petitioner's claim that the drug quantity
attributed to petitioner had been wrongly calculated. Pet. App. 2a.
At sentencing, the district court determined that petitioner's objections
to the calculation of drug quantities attributable to him and to the computation
of his criminal history were without merit. The court thus refused to reduce
petitioner's base offense level. The court also heard argument from the
government and petitioner regarding the PSR's recommendation that petitioner
be sentenced to life imprisonment under 21 U.S.C. 841(b)(1)(A), because
he had committed two prior felonies. The court adopted the PSR's findings
and sentenced petitioner to life imprisonment. Pet. App. 2a.
3. In petitioner's original appeal, he raised several challenges to his
conviction and also argued that his life sentence based on the three strikes
provision was based on an erroneous finding that he had two felony convictions
that had become final before he committed the instant offense. Petitioner
did not challenge the district court's drug quantity findings. The court
upheld petitioner's conviction, but vacated the life sentence. The court
found that petitioner was not eligible for a life sentence under the three
strikes provision of 21 U.S.C. 841(b)(1)(A), because his two prior convictions
were not final at the time the present conspiracy violation was committed.
150 F.3d at 449-450. The court remanded for resentencing, stating: "[B]ecause
the Government failed to establish that [petitioner] had two final felony
drug convictions at the time of the commission of the instant offense, we
VACATE the district court's imposition of a life sentence for [petitioner],
and REMAND for his resentencing." 150 F.3d at 451.
On remand, petitioner argued that the quantity of drugs attributed to him
in the PSR was too high. The district court declined to address the drug
quantity argument, concluding that the only course open to the court on
remand from the court of appeals was to reimpose sentence without application
of the three strikes provision. The district court adopted the findings
on drug quantity from the original PSR and enhanced petitioner's sentence
based on those findings. The court sentenced petitioner to 240 months' imprisonment,
to be followed by a five-year period of supervised release. Pet. App. 3a.
4. Petitioner appealed his sentence, arguing that the district court erred
on remand in precluding him from raising the issue of drug quantity. The
court of appeals affirmed petitioner's sentence. Relying on United States
v. Marmolejo, 139 F.3d 528 (5th Cir.), cert. denied, 525 U.S. 1056 (1998),
the court held that petitioner was foreclosed from challenging drug quantity
at resentencing because he failed to raise the issue during his initial
appeal. Pet. App. 7a-9a. The court noted that petitioner had obviously been
aware of the district court's adverse ruling rejecting his objections to
the PSR's drug quantity findings, yet had failed to challenge those findings
during his initial appeal. "As a result, although the drug quantity
issue was fully presented and reviewed by the district court this court's
decision only considered [petitioner's] arguments on the three strikes provision."
Pet. App. 7a. The court found that its remand order "only directed
the district court to resentence [petitioner] without applying the three
strikes provision," and that the district court on remand had properly
followed the court's instructions "to only address 'issues arising
out of the correction
of the sentence ordered by [the appellate] court.'" Ibid. (quoting
United States v. Marmolejo, 139 F.3d at 531).
The court rejected petitioner's contention that he had no incentive to raise
the drug quantity issue in his initial appeal because the district court's
application of the three strikes provision made drug quantity irrelevant.
The court found that petitioner could not claim that he believed that the
drug quantity issue was irrelevant, because he had objected to the drug
quantity findings at the district court level. The court explained:
A defendant cannot know which appellate argument might be successful, therefore
each contested issue must be appealed. Countless criminal appeals are determined
by our court which encompass multiple bases of relief claimed by appellants.
[Petitioner's] circumstance is no different. Because [petitioner] had another
appealable issue which turned out to be successful, does not mean that the
issue of drug quantity was not germane and appealable. Therefore, we reiterate
our conclusion from [United States v. Marmolejo] that all issues not arising
out of the remand order which could have been brought in the original appeal
are not proper for reconsideration by the district court below at resentencing.
Pet. App. 8a-9a.
ARGUMENT
Petitioner contends (Pet. 5-11) that the district court should have conducted
a de novo sentencing hearing on remand from the court of appeals' first
decision, at which he should have been allowed to raise the issue of drug
quantity. Petitioner further contends that the decision of the court of
appeals conflicts with decisions from other courts of appeals. The decision
of the court of appeals is correct and does not present a conflict meriting
this Court's attention. This Court recently denied review in the case on
which the court below relied in rejecting petitioner's claim, see Marmolejo
v. United States, 525 U.S. 1056 (1998) (No. 98-5372), and there is no reason
for a different result here.
1. It is settled that, after a court of appeals has reversed the judgment
in a criminal case, it has authority to provide either for de novo resentencing
or for more limited resentencing. See, e.g., United States v. Moore, 131
F.3d 595, 598 (6th Cir. 1997); United States v. Santonelli, 128 F.3d 1233,
1238-1239 (8th Cir. 1997) ("Ordinarily, an appeals court can avoid
the problem of multiple appeals by specifically issuing limited remands
[in] sentencing cases, leaving open for resolution only the issue found
to be in error on the initial sentencing. Of course in an appropriate case
it may remand for a complete redetermination of the sentence."); United
States v. Webb, 98 F.3d 585, 587 (10th Cir. 1996), cert. denied, 519 U.S.
1156 (1997); United States v. Polland, 56 F.3d 776, 777-778 (7th Cir. 1995)
("[W]e have the power to limit a remand to specific issues or to order
complete resentencing."); United States v. Pimentel, 34 F.3d 799, 800
(9th Cir. 1994), cert. denied, 513 U.S. 1102 (1995); United States v. Bell,
5 F.3d 64, 66-67 (4th Cir. 1993).
It is also settled that, except perhaps in extraordinary circumstances,
a district court conducting a resentencing must act in conformity with the
mandate of the court of appeals. See, e.g., United States v. Campbell, 168
F.3d 263, 265 (6th Cir.), cert. denied, 120 S. Ct. 195 (1999); Moore, 131
F.3d at 598; Webb, 98 F.3d at 587; United States v. Tamayo, 80 F.3d 1514,
1519-1520 (11th Cir. 1996); Polland, 56 F.3d at 777-778 (citing cases);
Pimentel, 34 F.3d at 800; Bell, 5 F.3d at 66. Thus, the courts of appeals
agree that they have discretion to determine the scope of a resentencing,
and that the district court is obliged to follow the directions of the court
of appeals when conducting the resentencing.
In remanding for resentencing in this case, the court of appeals stated:
"[B]ecause the Government failed to establish that [petitioner] had
two final felony drug convictions at the time of the commission of the instant
offense, we VACATE the district court's imposition of a life sentence for
[petitioner], and REMAND for his resentencing." 150 F.3d at 451. The
district court interpreted that mandate as limiting the scope of remand,
Pet. App. 3a, and the Fifth Circuit confirmed that interpretation by holding
that "[o]ur remand order only directed the district court to resentence
[petitioner] without applying the three strikes provision," id. at
7a. Given that limited remand order, the district court properly concluded
that it lacked authority to reconsider sentencing claims unrelated to those
enhancements.
The courts of appeals have consistently held that de novo resentencing is
inappropriate after limited remand orders. See, e.g., Santonelli, 128 F.3d
at 1237 (resentencing was properly limited to correction of a single error
where, although court of appeals stated generally that case was remanded
for resentencing, "that statement must be read with the analysis offered
in the opinion," which gave one specific reason for resentencing);
United States v. Whren, 111 F.3d 956, 958-960 (D.C. Cir. 1997), cert. denied,
522 U.S. 1119 (1998); Tamayo, 80 F.3d at 1519-1520; Polland, 56 F.3d at
777-778 (resentencing was properly limited where case had been remanded
"for resentencing on the issue of obstruction of justice"); United
States v. Stanley, 54 F.3d 103, 107-108 (2d Cir.), cert. denied, 516 U.S.
891 (1995); Pimentel, 34 F.3d at 800 (resentencing was properly limited
where court of appeals had "expressly limited the scope of [the] remand
to consideration of a single sentencing issue").
2. Petitioner contends that there is a disagreement among the courts of
appeals on the question of the proper scope of a resentencing when the court
of appeals gives no indication as to the intended scope of proceedings on
remand. A number of courts of appeals have held that resentencing in such
circumstances is presumptively limited in nature. See, e.g., Pet. App. 6a
n.2; Santonelli, 128 F.3d at 1237-1239; Whren, 111 F.3d at 958- 960; United
States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996); Tamayo, 80 F.3d at
1519-1520; Stanley, 54 F.3d at 107-108; United States v. Bell, 988 F.2d
247, 250 (1st Cir. 1993). Several other courts of appeals, however, have
suggested that resentencing after remand
is presumptively de novo. See, e.g., United States v. Smith, 116 F.3d 857,
859 (10th Cir.), cert. denied, 522 U.S. 903 (1997); United States v. Jennings,
83 F.3d 145, 151 (6th Cir.), cert. denied, 519 U.S. 975 (1996); United States
v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995).
The disagreement among the courts of appeals on that narrow procedural issue
does not merit plenary review by this Court. Compare Ortega-Rodriguez v.
United States, 507 U.S. 234, 251 n.24 (1993) (noting that courts of appeals
have supervisory authority to structure discretionary principles of appellate
practice). A particular court of appeals may clarify its intent by adopting
a rule that remand orders that give no specific indication of their intended
scope should be generally construed to permit (or not to permit) de novo
resentencing. But the fact that different circuits have different rules
concerning the scope of remand in such cases poses no problem, since attorneys
and district courts within each circuit can easily become familiar with
local practice.
In any event, review is not warranted here for an additional reason. The
district court ruled at the original sentencing that petitioner was responsible
for the amount of drugs as recited in the Presentence Investigation Report,
and petitioner did not contest that ruling in the first appeal. That issue
was therefore abandoned. Petitioner argues (Pet. 6-8), however, that it
was only after he was resentenced that he had reason and incentive to appeal
the drug quantity calculations. The court of appeals correctly rejected
that claim. As the court observed (Pet. App. 8a-9a), petitioner cannot claim
that he believed that the issue was irrelevant at the time of his first
sentencing, because he objected to the drug quantity findings at the district
court level. And, because petitioner could not know which appellate argument
he advanced would be successful, he was obligated to appeal each contested
issue that he wished to preserve. As the court below explained, the fact
that "[petitioner] had another appealable issue which turned out to
be successful * * * does not mean that the issue of drug quantity was not
germane and appealable." Pet. App. 8a. Thus, at the time of petitioner's
original appeal, it was plain to petitioner that if he was successful in
his challenge to his life sentence under the three strikes provision, the
drug quantity amount-which was decided adversely to him at the district
court level -would be highly relevant. In those circumstances, the court
of appeals properly concluded that because the drug quantity issue could
have been raised in the original appeal, it was not proper for reconsideration
by the district court at resentencing. See United States v. Ticchiarelli,
171 F.3d 24, 28 (1st Cir.) (suggesting negative answer to "the question
whether a party, not having appealed from an aspect of explicit findings
and conclusions at sentencing, is free on remand as to a different unrelated
issue to require the court to hear that aspect again"), cert. denied,
120 S. Ct. 129 (1999); Parker, 101 F.3d at 528 ("A party cannot use
the accident of a remand to raise in a second appeal an issue that he could
just as well have raised in the first appeal.").
The cases relied on by petitioner (Pet. 6-8) do not stand for the proposition
that a district court must consider anew on remand an issue that was abandoned
in a previous appeal. In United States v. Ticchiarelli, 171 F.3d at 30,
United States v. Jennings, 83 F.3d at 151, and United States v. Atehortva,
69 F.3d 679, 684-685 (2d Cir. 1995), cert. denied, 517 U.S. 1249 (1996),
a party was permitted to raise a new sentencing argument for the first time
after remand, but the argument was irrelevant-and thus had not been raised-at
the time of the original sentencing. Here, by contrast, petitioner at the
original sentencing actively contested the Presentence Investigation Report's
computation of the quantity of drugs for which he was responsible, and the
district court decided that issue adversely to him. Accordingly, in order
to preserve the issue of drug quantity, petitioner was obligated to raise
the issue on appeal. See Whren, 111 F.3d at 960 ("A defendant should
not be held to have waived an issue if he did not have a reason to raise
it at his original sentencing," but a defendant "may not revive
in the second round an issue he allowed to die in the first.").
Indeed, it would seriously undermine the orderly and efficient operation
of the appellate process if district courts were routinely required to reconsider
issues that should have been challenged on appeal. See, e.g., Santonelli,
128 F.3d at 1238 ("Repetitive hearings, followed by additional appeals,
waste judicial resources and place additional burdens on parole officers
and personnel and on hardworking district and appellate judges.");
Whren, 111 F.3d at 960 (permitting parties to raise previously abandoned
sentencing claims on remand would be "anomalous and inefficient");
United States v. Connell, 6 F.3d 27, 30 (1st Cir. 1993) (noting "wastefulness,
delay, and overall wheel-spinning that attend piecemeal consideration of
matters which might have been previously adjudicated" and stating that
"litigants should not ordinarily be allowed to take serial bites at
the appellate apple").*
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
DEBORAH WATSON
Attorney
JUNE 2000
* Petitioner argues (Pet. 9-10) that a remand for resentencing under the
Sentencing Guidelines necessitates a de novo hearing because the district
court's factual findings under the Guidelines are frequently interdependent.
Thus, he argues, quoting United States v. Atehortva, 69 F.3d at 685, "[w]hen
a defendant challenges convictions on particular counts that are inextricably
tied to other counts in determining the sentencing range under the guidelines,
the defendant assumes the risk of undoing the intricate knot of calculations
should he succeed." We agree that when a defendant is found guilty
on a multi-count indictment, the sentence imposed typically constitutes
a package that takes into account "a breadth of information" to
ensure that "the punishment will suit not merely the offense but the
individual defendant." United States v. Pimienta-Redondo, 874 F.2d
9, 14 (1st Cir.) (en banc), cert. denied, 493 U.S. 890 (1989) (internal
quotation marks omitted). Accordingly, "[w]hen the conviction on one
or more of the component counts is vacated, common sense dictates that the
judge should be free to review the efficacy of what remains in light of
the original plan, and to reconstruct the sentencing architecture upon remand,
within applicable constitutional and statutory limits, if that appears necessary
to ensure that the punishment still fits both crime and criminal."
Ibid. Those concerns, however, have no bearing on the instant case. The
court of appeals did not reverse one count of a multi-count indictment.
Rather, the court affirmed petitioner's conviction on the lone drug count
with which petitioner was charged and vacated his life sentence because
he was not eligible for a life sentence under the three strikes provision
of 21 U.S.C. 841(b)(1)(A). That action by the court of appeals did not undo
any intricate knot of district court sentencing calculations that would
justify (let alone require) de novo sentencing on remand.