U.S. v. Castillo, 97-50708

• Decision Date: 22 June 1999
• Docket Number: No. 97-50708,97-50708
• Citation: 179 F.3d 321
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jaime CASTILLO; Brad Eugene Branch; Renos Lenny Avraam; Graeme Leonard Craddock; Kevin A. Whitecliff, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 321

179 F.3d 321

UNITED STATES of America, Plaintiff-Appellee, v. Jaime CASTILLO; Brad Eugene Branch; Renos Lenny Avraam Graeme Leonard Craddock; Kevin A. Whitecliff Defendants-Appellants.

No. 97-50708.

United States Court of Appeals Fifth Circuit.

June 22, 1999.

Joseph Charles Wyderko, U.S. Dept. of Justice, Washington, DC, for Plaintiff-Appellee.

Stephen P. Halbrook, Fairfax, VA, for Castillo.

Richard Gale Ferguson, Waco, TX, for Branch.

John F. Carroll, Leon, Amberson & Carroll, San Antonio, TX, for Avraam.

George Stanley Rentz, Waco, TX, for Craddock.

Steven Rocket Rosen, Houston, TX, for Whitecliff.

Appeals from the United States District Court for the Western District of Texas.

Before EMILIO M. GARZA, DeMOSS and PARKER, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Jaime Castillo, Brad Eugene Branch, Renos Lenny Avraam, Graeme Leonard Craddock, and Kevin A. Whitecliff ("the defendants") appeal their convictions and sentences under 18 U.S.C. § 924(c)(1). We affirm.

I

The defendants are Branch Davidians convicted for, among other things, violating 18 U.S.C. § 924(c)(1) because of their involvement in the events that occurred at the Mount Carmel compound near Waco, Texas, in early 1993. ¹ At the time of the defendants' conviction, § 924(c)(1) stated:

Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime or drug trafficking crime, be sentenced to imprisonment for five years, ... and if the firearm is a machinegun, or a destructive device [e.g., a hand grenade], or is equipped with a firearm silencer or muffler, to imprisonment for thirty years.

18 U.S.C. § 924(c)(1) (1994) (superseded).

Pursuant to § 924(c)(1), the district court sentenced Castillo, Branch, Avraam, and Whitecliff to thirty years imprisonment and Craddock to ten years imprisonment. ² Underlying the sentences were findings of fact that the defendants had actually or constructively possessed enhancing weapons (i.e., machine guns; destructive devices; firearms equipped with silencers or mufflers) during and in relation to a crime of violence--that is, a conspiracy to murder federal agents. With the exception of Avraam, Craddock, and another co-defendant, Ruth Riddle, the district court did not base its findings of fact on direct evidence of actual possession. Rather, it attributed the possession of enhancing weapons--specifically, machine guns, hand grenades, and firearms equipped with silencers--to the defendants based on the "fortress theory" ³ and the Pinkerton doctrine. ⁴

The defendants appealed. We affirmed on all issues but the sentences for the § 924(c)(1) convictions. See United States v. Branch, 91 F.3d 699, 745 (5th Cir.1996), cert. denied, 520 U.S. 1185, 117 S.Ct. 1466, 1467, 137 L.Ed.2d 681 (1997). In regard to the sentences, we noted that Bailey v. United States, 516 U.S. 137, 146-50, 116 S.Ct. 501, 507-09, 133 L.Ed.2d 472 (1995), establishes that, in the context of § 924(c)(1), "use" means "active employment," ⁵ and held that the district court's finding of use based on evidence of actual or constructive possession did not meet Bailey's definition of "use." See Branch, 91 F.3d at 740. At the end of our discussion, we stated:

As we have explained, there is evidence from which it could be found that machine-guns and other enhancing weapons [e.g., destructive devices, firearms equipped with firearm silencers] were used by one or more members of the conspiracy in the firefight of February 28[, 1993]. The jury was not required to do so and the district court only entered those findings then required. With Bailey, the district court must take another look and enter its findings regarding "active employment." Should the district court find on remand that members of the conspiracy actively employed machine-guns, it is free to reimpose the 30-year sentence. We vacate the defendants' sentences on [the count of the indictment that charges a violation of § 924(c)(1) ] ... and remand for re-sentencing on that count.

We note that, on remand, the district court should consider whether the defendants actively employed a weapon during and in relation to the conspiracy to murder federal agents.

Id. at 740-41. In accordance with these comments, we entered a mandate that stated, in part: "[The sentences for the § 924(c)(1) convictions] are vacated and remanded for findings and re-sentencing."

On remand, the district court found that one or more persons involved in the conspiracy to murder federal agents had actively employed machine guns and other enhancing weapons in the firefight on February 28, 1993, and then applied the Pinkerton doctrine to attribute the active employment of machine guns and other enhancing weapons to the defendants on February 28, 1993. Alternatively, it found that Branch and Avraam each had used (i.e., actively employed) and carried a machine gun on February 28, 1993, and that Castillo and Craddock each had carried a hand grenade on April 19, 1993. The district court re-sentenced Castillo, Branch, Avraam, and Whitecliff to thirty years imprisonment and Craddock to ten years imprisonment. ⁶ The defendants timely appealed.

II

This appeal involves the following contentions: (1) we erred in holding that, in the context of § 924(c)(1), the type of firearm used or carried during and in relation to a crime of violence or a drug trafficking crime is a sentencing enhancement, and not an element of the offense; (2) we erred in holding that a conviction for violating § 924(c)(1) stands despite the absence of a conviction for the predicate offense; (3) the district court's jury instruction on the "use" of a firearm was improper; (4) the district court's application of the Pinkerton doctrine was improper; (5) the district court clearly erred in finding that Branch and Avraam each had used and carried a machine gun on February 28, 1993; (6) the district court clearly erred in finding that Castillo and Craddock each had carried a hand grenade on April 19,1993; (7) the district court clearly erred in considering conduct other than that which occurred on February 28, 1993, in re-sentencing Castillo and Craddock; and (8) the district court applied the wrong standard of proof in sentencing the defendants. ⁷ The Government asserts that either the law-of-the-case doctrine or the waiver doctrine precludes the first, second, third, fourth, and eighth contentions.

The law-of-the-case doctrine "posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). Based on this general principle, we have developed specific rules about how our earlier decisions affect later proceedings and cases. See Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C.Cir.1995).

The law-of-the-case doctrine follows from the "sound policy that when an issue is once litigated and decided, that should be the end of the matter." United States v. United States Smelting Ref. & Mining Co., 339 U.S. 186, 198, 70 S.Ct. 537, 544, 94 L.Ed. 750 (1950). It is an exercise of judicial discretion, not a limit on judicial power. See Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912).

The waiver doctrine bars consideration of an issue that a party could have raised in an earlier appeal in the case. See Brooks v. United States, 757 F.2d 734, 739 (5th Cir.1985). It "serves judicial economy by forcing parties to raise issues whose resolution might spare the court and parties later rounds of remands and appeals." Hartman v. Duffey, 88 F.3d 1232, 1236 (D.C.Cir.1996), cert. denied, 520 U.S. 1240, 117 S.Ct. 1844, 137 L.Ed.2d 1048 (1997). The waiver doctrine differs from the law-of-the-case doctrine in that it arises as a consequence of a party's inaction, not as a consequence of a decision on our part. See Crocker, 49 F.3d at 739.

Only plain error justifies departure from the waiver doctrine. See id. at 740; cf. McCann v. Texas City Ref., Inc., 984 F.2d 667, 673 (5th Cir.1993) ("It is the unwavering rule in this Circuit that issues raised for the first time on appeal are reviewed only for plain error."). We find plain error when (1) there is an error (2) that is clear and obvious and (3) that affects substantial rights. See United States v. Olano, 507 U.S. 725, 732, 734, 113 S.Ct. 1770, 1776, 1777, 123 L.Ed.2d 508 (1993). In most cases, the party asserting plain error bears the burden of making a specific showing of prejudice (i.e., the error affected the outcome of the district court proceedings) to satisfy the affects substantial rights prong. See id. at 735, 113 S.Ct. at 1778. Even if we find plain error, we reverse only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id. at 732, 113 S.Ct. at 1776.

We now consider the applicability of the law-of-the-case doctrine and the waiver doctrine to this appeal.

III

A

The defendants argue that, in the context of § 924(c)(1), the type of firearm used or carried during and in relation to a crime of violence or a drug trafficking crime is an element of the offense. In disposing of the defendants' first appeal, we rejected this contention, and found that the type of firearm is a sentencing enhancement. ⁸ See Branch, 91 F.3d at 740.

The defendants' argument implicates the law-of-the-case rule that when we resolve a legal issue and remand to the district court, our decision binds subsequent proceedings in the district court and on later appeal. See White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967). The rule covers...