38 F.3d 1419 (6th Cir. 1994), 93-2230, United States v. Moored

Docket Nº:93-2230.
Citation:38 F.3d 1419
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James F. MOORED, Defendant-Appellant.
Case Date:November 01, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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38 F.3d 1419 (6th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,


James F. MOORED, Defendant-Appellant.

No. 93-2230.

United States Court of Appeals, Sixth Circuit

November 1, 1994

Argued May 2, 1994.

Julie Ann Woods, Asst. U.S. Atty. (argued and briefed), Grand Rapids, MI, for plaintiff-appellee.

David A. Dodge (argued and briefed), Grand Rapids, MI, for defendant-appellant.

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Before: JONES and BATCHELDER, Circuit Judges; and GILMORE, District Judge. [*]

GILMORE, District Judge.

This is the second time this case has been before this court. Appellant James Moored was charged in a one count information with wire fraud, and entered into a plea agreement with the government wherein the parties agreed to a specific account of the events and a nonbinding calculation of the dollar amount that should attach to the offense. He was sentenced to 27 months imprisonment, three years supervised release, and a $50.00 mandatory special assessment. Moored appealed this sentence.

On appeal, this court reversed Moored's 27 month sentence, and remanded the case for resentencing. United States v. Moored, 997 F.2d 139 (6th Cir.1993). At resentencing, Moored again received a sentence of 27 months incarceration, and this appeal followed.

The facts of the case were adequately set forth in the first appeal as follows.

In early 1990, Defendant applied for loans in the total amount of $1,750,332 from various private lenders. Defendant indicated to the lenders that $400,000 of the loan proceeds would be used to pay a debt owed to Jordan College, a small institution in Grand Rapids, Michigan. Defendant had an active history with the college, including a term on its board of trustees. He had engaged in various financial transactions with the college, including loans, donations, and real property transactions, based in part on promises that he failed to keep and representations that proved untrue.

The debt to Jordan College was comprised of a $100,000 loan that the college made to Defendant, a $50,000 undisclosed lien on property that Defendant sold to the college, and a $175,000 downpayment on that same property that Appellant had promised to return to the college.

In order to entice the lenders, Defendant falsified an offer to purchase stock that Defendant had pledged as security for the loan. Defendant transmitted the falsified offer from outside the state of Michigan by facsimile to the lenders' counsel in Michigan. Defendant also falsified a letter of credit from Northwest Bank.

Immediately after the two checks comprising the loan were transferred to Defendant, the lenders learned of the fraud and stopped payment. The lenders suffered no actual loss.

Defendant pled guilty to a one-count information pursuant to a plea agreement. The government agreed that the potential loss to the lenders was less than $350,000, which would result in an offense level enhancement of eight levels, according to 2F1.1(b)(1)(I) of the United States Sentencing Guidelines ("U.S.S.G."). The basis for that calculation was the actual value of the stock pledged as security compared to the value fraudulently attributed to the stock by Defendant when applying for the loans.

The probation officer agreed that the base offense level was six, pursuant to U.S.S.G. Sec. 2F1.1. In addition, the officer recommended an enhancement of twelve levels, pursuant to U.S.S.G. Sec. 2F1.1(b)(1)(M), finding the potential or intended loss to be $1,500,000 to $2,000,000. That calculation was purportedly based on the amount of the loans added to the amount owed to Jordan College.

At sentencing, the district court found the amount of the loss to be $325,000, which represented only Defendant's debt to Jordan College.... On that basis, the court enhanced the offense level by eight.

Moored, 997 F.2d at 140-41. (footnote omitted).

The Court vacated Moored's 27 month sentence and remanded the case for resentencing. First, the court found that the district court committed "clear error" by including the potential loss to Jordan College in the computation of the total loss. Additionally,

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the court held that the district court incorrectly added two levels for abuse of a position of trust. Finally, the court concluded that the district court must reconsider the acceptance of responsibility issue, excluding from consideration Defendant's conduct in connection with Jordan College.

At Moored's original sentencing, the district court determined that both the actual and intended loss for sentencing purposes was zero. This determination was not appealed by either Moored or the government. However, upon resentencing, the district court reviewed its earlier determination and recalculated the loss to equal the gross amount of the loans. The issue on appeal is whether the district court had the authority to do so.

At the resentencing, the district court stated that it had earlier made a mistake regarding the calculation of the loss, and the intended loss was properly determined at $1,700,000, rather than zero. Based on this loss calculation, the court reimposed the same sentence of 27 months imprisonment. The court determined that this was a proper sentence under the United States Sentencing Guidelines based upon a finding of a potential loss or an intended loss of 1.7 million dollars.


The first question we must resolve is whether the district court was authorized to reconsider the loss attributable to Defendant on remand.

Defendant contends the district court was precluded from reconsidering the loss issue for two reasons: (1) this court's mandate did not direct the district court to reconsider the loss issue, and (2) neither party challenged the district court's findings and conclusions on that issue in the first appeal and, therefore, the district court's determination of zero loss became the law of the case. Accordingly, Defendant argues that the district court's decision to reconsider and reverse its earlier ruling concerning the loss issue violated the "law of the case" doctrine and the "mandate rule."

Under the doctrine of law of the case, findings made at one point in the litigation become the law of the case for subsequent stages of that same litigation. United States v. Bell, 988 F.2d 247, 250 (1st Cir.1993). A complementary theory, the mandate rule, requires lower courts to adhere to the commands of a superior court. Id. at 251. Accordingly,

[u]pon remand of a case for further proceedings after a decision by the appellate court, the trial court must 'proceed in accordance with the mandate and the law of the case as established on appeal.' The trial court must 'implement both the letter and the spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces.'

United States v. Kikumura, 947 F.2d 72, 76 (3d Cir.1991). (Citations omitted).

In determining whether the district court violated the law of the case doctrine or the mandate rule, we must consider: a) whether the loss issue was expressly or impliedly decided by this court in Defendant's first appeal, and b) whether this court's mandate to the district court was so narrow in scope as to preclude the district court from considering the loss issue.

The law of the case doctrine and the mandate rule generally preclude a lower court from reconsidering an issue expressly or impliedly decided by a superior court. However, these principles are not without exception. "Even where, as here, an appellate court's mandate does not contemplate resurrecting an issue on remand, the trial court may still possess some limited discretion to reopen the issue in very special situations." Bell, 988 F.2d at 250-51. In Petition of United States Steel Corp., 479 F.2d 489, 494 (6th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 71, 38 L.Ed.2d 110 (1973), this circuit explained that the law of the case doctrine dictates that issues, once decided, should be reopened only in limited circumstances, e.g., where there is "substantially different evidence raised on subsequent trial; a subsequent contrary view of the law by the controlling authority; or a clearly erroneous decision which would work a manifest injustice." (citing White v. Murtha, 377 F.2d 428, 431-432 (5th Cir.1967)). Accord United States v. Rivera-Martinez, 931 F.2d 148 (1st

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Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 184, 116 L.Ed.2d 145 (1991).

In addition to those exceptions outlined by the Sixth Circuit in Petition of United States Steel Corp., several circuits have given broad discretion to the district court to reconsider sentencing factors on a sentencing remand. For example, in United States v. Smith, 930 F.2d 1450, 1456 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991), the court stated that absent explicit limitations in the appellate court's mandate, an order vacating a sentence and remanding the case for resentencing "directs the sentencing court to begin anew, so that 'fully de novo resentencing' is entirely appropriate.... The law of the case doctrine and the cases cited by Mr. Smith are inapposite, given this court's vacation of his initial sentence." See also United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992) ("Once a sentence has been vacated or a finding related to sentencing has been reversed and the case has been remanded for resentencing, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing."); United States v. Sanchez Solis, 882 F.2d 693, 699 (2d...

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