U.S. v. Lee

• Decision Date: 20 January 2004
• Docket Number: No. 03-10135.,03-10135.
• Citation: 358 F.3d 315
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy S. LEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

358 F.3d 315

UNITED STATES of America, Plaintiff-Appellee, v. Timothy S. LEE, Defendant-Appellant.

No. 03-10135.

United States Court of Appeals, Fifth Circuit.

January 20, 2004.

COPYRIGHT MATERIAL OMITTED

Delonia Anita Watson, Fort Worth, TX, Robert Lee Webster, Asst. U.S. Atty. (argued), Dallas, TX, for Plaintiff-Appellee.

Ira Raymond Kirkendoll, Fed. Pub. Def., Dallas, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before GARWOOD, JONES and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

In this criminal appeal, Timothy S. Lee challenges his sentence imposed upon remand, arguing that the mandate issued by this court in United States v. Lee, 310 F.3d 787 (5th Cir.2002) ("Lee I") precluded the district court from upwardly departing at resentencing pursuant to § 4A1.3 of the United States Sentencing Guidelines Manual. Lee asserts in the alternative that the district court's upward departure was premised on an erroneous determination that Lee's criminal history category did not adequately reflect the seriousness of his criminal history or the likelihood that he would reoffend. Because we find, on the facts presented, that the district court's imposition of a discretionary upward departure was not foreclosed by our mandate and was warranted, we affirm the district court's judgment sentencing Lee to a term of imprisonment of 65 months, three years of supervised release, and a $100 special assessment.

FACTUAL AND PROCEDURAL HISTORY

On January 17, 2001, Timothy S. Lee was charged by indictment with two counts of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). On April 27, 2001, Lee pleaded guilty before the district court to Count 2 of the indictment pursuant to a conditional plea agreement in exchange for the dismissal of Count 1 and the reservation of Lee's right to appeal the district court's denial of his motion challenging the constitutionality of § 922(g)(1) (proscribing the possession of a firearm by a convicted felon).

The Presentence Report ("PSR" or "report") calculated Lee's base offense level under U.S.S.G. § 2K2.1 (2000).¹ The report concluded that Lee's prior conviction for Unauthorized Use of a Motor Vehicle ("UUMV") was a crime of violence. Accordingly, the PSR adjusted Lee's offense level under U.S.S.G. § 2K2.1(a)(4)(A), recommending an enhanced base offense level of 20. The PSR recommended an additional two-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(4) (Special Offense Characteristics) for Lee's possession of a stolen firearm and a three-level downward adjustment for Lee's acceptance of responsibility. Lee objected to the PSR's use of a base offense level of 20, arguing that his prior UUMV conviction should not be considered a crime of violence for purposes of § 2K2.1(a)(4)(A) and as defined by U.S.S.G. § 4B1.2. The district court overruled this objection. Lee's total offense level score of 19, coupled with a Criminal History Category ("CHC") of VI,² yielded a guideline range of 63 to 78 months imprisonment. In addition, the PSR recommended a discretionary upward departure pursuant to U.S.S.G. § 4A1.3, on the basis that the applicable sentencing range did not adequately reflect the seriousness of Lee's criminal history.

At sentencing, the district court agreed with the PSR that "an upward departure [pursuant to U.S.S.G. § 4A1.3] would be appropriate in [Lee's] case," finding that it was "a close question as to whether or not [Lee] should have been sentenced significantly above the top of the guidelines" to a term in excess of the guideline maximum 78-month period of incarceration. The district court, however, decided not to upwardly depart and instead opted to "sentence Lee to the top of the guidelines." Accordingly, on August 3, 2001, the district court sentenced Lee to a prison term of 78 months, a three-year term of supervised release, and a mandatory special assessment of $100.

In his initial appeal to this court, Lee challenged his conviction and sentence. On October 28, 2002, in Lee I, this court affirmed the district court's denial of Lee's motion attacking the constitutionality of § 922(g)(1), but vacated his sentence and remanded the case for resentencing in light of United States v. Charles, 301 F.3d 309 (5th Cir.2002). In Charles, decided after the district court sentenced Lee but prior to our decision in Lee I, this court sitting en banc held that simple vehicle theft is not a crime of violence under § 4B1.2 (a). Charles, 301 F.3d at 311. We clarified that "sentences involving possession of a firearm by a felon, which also involve a prior conviction for an alleged `crime of violence,' are to have the `crime of violence' determination made only in accordance with the definition in § 4B1.2(a) and its accompanying commentary." Id. at 312. Our holding in Charles also instructed that an offense is considered a crime of violence "`only if, from the [face of the] indictment, the crime itself or the conduct specifically charged presents a serious potential risk of injury to a person.'" Id. at 314. Because Lee's state indictment for UUMV was not in the record, and thus could not be reviewed, we vacated the sentence and remanded the case to the district court to determine whether, after reviewing the indictment, his UUMV conviction could be deemed a crime of violence as defined in § 4B1.2(a) and its accompanying commentary. Lee I, 310 F.3d at 789. Specifically, our mandate directed the district court to resentence Lee "in light of this [court's] opinion [in Lee I] and our decision in Charles." Id. at 791.

On remand, the district court notified Lee of its tentative conclusion that an upward departure from the guidelines sentencing range would be warranted pursuant to U.S.S.G. § 4A1.3 should it find that the UUMV is not a crime of violence. The district court also issued an order directing the preparation of a revised PSR to reflect this court's opinion in Lee I. Prior to resentencing, Lee filed a written objection arguing that this court's remand order precluded the district court from considering any issue other than whether Lee's UUMV was a crime of violence and thus foreclosed revisiting the propriety of a discretionary upward departure. In the alternative, Lee contended that his criminal history was not sufficiently egregious to justify an upward departure from his CHC of VI. The district court overruled Lee's objections.

At resentencing, the district court reviewed Lee's state indictment and concluded that Lee's UUMV was not a crime of violence, adopting the findings and conclusions of the revised PSR. Reflecting this change, the revised PSR calculated Lee's base offense level to be 14 (in lieu of the 20 points assignable for a prior crime of violence), producing a total offense level of 13 once Lee's score was adjusted for possession of a stolen firearm and acceptance of responsibility, as described above. Lee's total criminal history score of 21, placing him at CHC VI, was unaffected by the reversal of the crime of violence determination. The resulting guideline range of imprisonment for Lee's total offense level of 13 and CHC VI was 33-41 months. Consistent with the revised PSR's recommendation, however, the district court decided that a two-year upward departure from the top of the guideline range was warranted and sentenced Lee to a prison term of 65 months on the basis that Lee's CHC of VI did not adequately reflect the seriousness of his criminal history or the likelihood of recidivism. In addition, Lee received three years of supervised release and a $100 fine. Lee now appeals.

DISCUSSION

On appeal after remand, Lee argues that the district court erred by upwardly departing at resentencing based on its finding that the otherwise applicable 33-41 month guideline range of imprisonment did not adequately reflect the seriousness of Lee's criminal history. Specifically, Lee contends that the mandate issued by this court in Lee I implicitly precluded the district court from considering any issue other than whether Lee's UUMV constituted a crime of violence. Lee argues in the alternative that the district court abused its discretion by imposing a discretionary two-year upward departure from Lee's CHC of VI pursuant to § 4A1.3 because the seriousness of Lee's criminal history was adequately reflected in the guideline sentencing range. The government counters that the upward departure issue was open for reconsideration on remand because the issue was raised in the initial sentencing, was not waived on appeal, and became germane only as a result of the correction of the sentence ordered by this court. The government further argues that the upward departure was justified because the guidelines range underrepresented the seriousness of Lee's criminal history and the likelihood that he would commit other crimes. After a thorough review of the record and this circuit's precedent, we agree with the government's position in both respects.

I. The scope of our mandate in Lee I

We first address Lee's assertion that the mandate rule, a corollary of the law of the case doctrine, prohibited the district court from reconsidering and imposing a discretionary upward departure pursuant to U.S.S.G. § 4A1.3. Whether the law of the case doctrine foreclosed the district court's exercise of discretion on remand and the interpretation of the scope of this court's remand order present questions of law that this court reviews de novo. Sobley v. Southern Natural Gas Co., 302 F.3d 325, 332 (5th Cir.2002) (stating that this court "review[s] de novo whether the trial court faithfully and accurately applied our instructions on remand") (internal citation omitted); see also Barrett v. U.S., 100 F.3d 35, 38 (5th Cir.1996).

The law of the case doctrine posits that ordinarily "`an issue of fact or law decided on appeal may not be reexamined either by the district court on remand or by...