U.S. v. Hicks

Citation146 F.3d 1198
Decision Date09 June 1998
Docket NumberNo. 96-3288,96-3288
Parties98 CJ C.A.R. 2929 UNITED STATES of America, Plaintiff--Appellee, v. Michael Ray HICKS, Defendant--Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender for the District of Kansas, Wichita, KS, appearing for Defendant-Appellant.

Randy M. Hendershot, Assistant U.S. Attorney (Jackie N. Williams, U.S. Attorney and D. Blair Watson, Assistant U.S. Attorney, on the brief), Office of the United States Attorney, Wichita, KS, appearing for Plaintiff-Appellee.

Before TACHA, McKAY, and MURPHY, Circuit Judges.

TACHA, Circuit Judge.

INTRODUCTION

Defendant Michael Ray Hicks was convicted of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; possession with intent to distribute marijuana, also in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; interstate transportation of a stolen vehicle in violation of 18 U.S.C. § 2313; and using or carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). The facts underlying Hicks's convictions are set forth in our published opinion addressing his previous appeal and need not be repeated here. See United States v. Miller, 84 F.3d 1244, 1248-49 (10th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 443, 136 L.Ed.2d 339 (1996), overruled by United States v. Holland, 116 F.3d 1353 (10th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 253, 139 L.Ed.2d 181 (1997). Hicks received a total sentence of 248 months for these convictions; specifically, he received concurrent sentences of 188 months for each of the two drug offenses and the vehicle offense, plus a consecutively running sentence of 60 months for the section 924(c) offense. See 18 U.S.C. § 924(c)(1) (imposing mandatory 5-year sentence to run consecutively with any sentence for an underlying drug offense(s)). Hicks appealed his convictions and sentence. This court affirmed the convictions on the possession charges and the vehicle offense, but we reversed the section 924 conviction and vacated that sentence upon concluding that the jury instruction defining "use" of a firearm was legally erroneous in light of Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). See Miller, 84 F.3d at 1262-63. We remanded for a new trial to determine whether Hicks had "carried" a firearm in violation of section 924(c)(1). 1

After our remand, the government decided not to retry the defendant on the section 924 charge. At the government's request, the district court then resentenced Hicks on the remaining drug offenses and found that it should apply a two-level enhancement under section 2D1.1(b)(1) of the Sentencing Guidelines, based on Hicks's possession of a firearm during the commission of the drug offenses. See UNITED STATES SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 2D1.1(B)(1) (1995 )2 ("If a dangerous weapon (including a firearm) was possessed [during the drug offense], increase [the base offense level] by 2 levels."). Prior to our vacation of his section 924 conviction, Hicks had been immune from this enhancement. In order to avoid "double counting" of the weapon factor, the Guidelines specify that when a defendant is convicted and sentenced under section 924(c)(1) for using or carrying a weapon during the commission of a drug offense, he cannot also have his sentence for the drug offense enhanced based on the weapon possession. See U.S.S.G. § 2K2.4 commentary (background). However, once we reversed Hicks's section 924 conviction and vacated the corresponding sentence, and the government chose not to retry the section 924 charge, this impediment to applying the 2D1.1(b)(1) enhancement disappeared. Accordingly, the district court agreed to the government's request for resentencing.

As a result of the resentencing, Hicks's new sentence totals 235 months; without the resentencing, our vacation of his section 924 sentence would have left him with a total sentence of only 188 months. The defendant objects to the resentencing on the grounds that it violates the mandate of this court. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and affirm.

DISCUSSION

The mandate rule is a "discretion-guiding rule" that "generally requires trial court conformity with the articulated appellate remand," subject to certain recognized exceptions. 3 United States v. Moore, 83 F.3d 1231, 1234 (10th Cir.1996). However, "where the appellate court has not specifically limited the scope of the remand, the district court generally has discretion to expand the resentencing beyond the sentencing error causing the reversal." Id. Thus, the question here is whether we specifically limited the scope of remand so as to prevent the district court from resentencing on the remaining convictions after the government decided not to retry the section 924(c)(1) charge. 4 To answer this question we must look at the language of the mandate.

In our mandate, we stated that "the judgment ... is affirmed in part and reversed in part" and ordered the case remanded "for further proceedings in accordance with the opinion of this court." Judgment, United States v. Hicks, No. 95-3045 (10th Cir. May 20, 1996). The opinion itself concluded with the following statement:

Mr. Hicks's conviction for using or carrying a firearm in relation to a drug trafficking crime is REVERSED, his sentence for that offense is VACATED, and the case is REMANDED for a new trial on that offense. The convictions and sentences are AFFIRMED in all other respects.

Miller, 84 F.3d at 1263.

Hicks argues that the language of our opinion specifically limited the district court's power so that the district court, upon remand, did not have the authority to adjust his sentence on the remaining charges once Our opinion in United States v. Webb, 98 F.3d 585 (10th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1097, 137 L.Ed.2d 229 (1997), demonstrates the specificity that we require in order to limit a district court's authority to resentence on remand. In that case, we held that after this court had directed the district court to impose a sentence within the range of 27-33 months, "the mandate rule prohibited the district court from departing downward from the guideline range enunciated." Id. at 587. The mandate in Hicks's case lacks this type of specific direction. Because we did not specifically limit the scope of the remand with regard to sentencing, the district court was able to exercise its discretion to expand the resentencing beyond simply vacating the sentence for the section 924 charge. See Moore, 83 F.3d at 1235.

we vacated the section 924(c)(1) conviction. We disagree. Although we did remand for the purpose of a new trial, nothing in the quoted language indicates that we intended to limit the district court's ability to resentence the defendant on the remaining counts should the government choose not to pursue the new trial. Our failure to specifically address the possibility that the government would not retry the defendant does not mean that the district court was powerless to adjust the defendant's sentence. "The fact that the Tenth Circuit's opinion and mandate[ ] did not set forth with specificity all of the possible permutations that might conceivably occur following remand is not an indication that enhancement is unequivocally barred by the scope of the mandate." United States v. Van Pelt, 938 F.Supp. 697, 706 (D.Kan.1996), aff'd, 131 F.3d 153 (10th Cir.1997) (unpublished table decision), cert. denied, --- U.S. ----, 118 S.Ct. 1377, --- L.Ed.2d ---- (1998). As we stated in Moore, "a district court, following the appellate vacation of a sentence, possesses the inherent discretionary power to expand the scope of the resentencing beyond the issue that resulted in the reversal and vacation of sentence." Moore, 83 F.3d at 1235.

Our holding here follows our recent decision in United States v. Smith, 116 F.3d 857 (10th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 256, 139 L.Ed.2d 183 (1997). Like the defendant here, Smith successfully argued on direct appeal that his section 924 conviction should be vacated in light of Bailey. We agreed and set aside the conviction and sentence for that charge, but, as in this case, did not make any reference to resentencing on the remaining drug conviction. Upon remand, the district court resentenced Smith on his drug conviction, applying the two-level enhancement under U.S.S.G. § 2D1.1(b)(1). Smith then appealed, asserting that the resentencing violated the mandate rule because the order to set aside the section 924 conviction precluded the court from reconsidering the sentence for the drug count. We rejected that argument, stating that "[o]nce the sentence on the firearms charge is 'set aside' the district court is no longer prohibited from considering appropriate enhancements on the remaining drug count." Id. at 859.

Although the mandate in Hicks's case varies slightly from the mandate in Smith, we do not find the difference significant. In Smith, we remanded with the following instructions: "[W]e REVERSE Smith's conviction under 18 U.S.C. § 924(c)(1) ... and REMAND with directions that the conviction and sentence thereon be set aside." United States v. Smith, 82 F.3d 1564, 1568 (10th Cir.1996). In Hicks's case we not only reversed his section 924 conviction and vacated his sentence for that offense, but we also stated that his "convictions and sentences are AFFIRMED in all other respects." Miller, 84 F.3d at 1263. However, our affirmance of the other convictions and sentences did not limit the district court's authority to revisit those sentences after we vacated the section 924 conviction. "The fact that [we] 'affirmed' the defendant['s] drug trafficking offenses was nothing more than a rejection of the...

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