U.S. v. Matthews

• Decision Date: 12 November 2002
• Docket Number: No. 01-50440.,01-50440.
• Citation: 312 F.3d 652
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey MATTHEWS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

312 F.3d 652

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey MATTHEWS, Defendant-Appellant.

No. 01-50440.

United States Court of Appeals, Fifth Circuit.

November 12, 2002.

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Joseph H. Gay, Jr., Asst. U.S. Atty., Ellen A. Lockwood, San Antonio, TX, for Plaintiff-Appellee.

John Aloysius Convery, Hasdorff & Convery, San Antonio, TX, for Defendant-Appellant.

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

Before JONES, SMITH and SILER,^* Circuit Judges.

JERRY E. SMITH, Circuit Judge:

For the second time, Jeffrey Matthews appeals his sentences for convictions of carjacking and conspiracy to commit carjacking. Although both sentences violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), these errors are harmless under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), so we affirm.

I.

A.

We described the facts of Matthews's heinous crimes in his first appeal, United States v. Matthews, 178 F.3d 295, 297-98 (5th Cir.1999) ("Matthews I"), so we review them only briefly here. Matthews and three other men stalked Terrie Dittman as she drove her van home. When she pulled into her driveway, Matthews took a gun from his co-defendant, Michael Cook, walked up to the van's driver-side window, and pointed the gun at Dittman. When she tried to drive away, Matthews shot at her five times and hit her three times, grievously injuring her and leaving her for dead.

A jury convicted Matthews of carjacking in violation of 18 U.S.C. § 2119, conspiracy to commit carjacking in violation of 18 U.S.C. § 371, and using or carrying a firearm during a carjacking in violation of 18 U.S.C. § 924(c). (Cook was convicted of similar crimes.) The district court sentenced Matthews to (1) twenty-five years' imprisonment for carjacking, which included a ten-year enhancement because he inflicted serious bodily injury, 18 U.S.C. § 2119(2); (2) seven years for conspiracy, which included a two-year enhancement under the criminal street gangs statute, 18 U.S.C. § 521; and (3) five years for the firearms violation. The court ordered the sentences to run consecutively, for a total of thirty-seven years.

In Matthews I, this court affirmed Matthews's convictions on all three counts and affirmed his conspiracy and firearms sentences, but vacated his carjacking sentence. After the district court sentenced Matthews but before we had decided Matthews I, the Court held in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), that the carjacking statute, 18 U.S.C. § 2119, stated three separate offenses, not one offense with three possible sentences.¹ For simplicity, we herein refer to these offenses as simple carjacking, § 2119(1); carjacking resulting in serious bodily injury, § 2119(2); and carjacking resulting in death, § 2119(3).

The maximum sentence for simple carjacking is fifteen years; for carjacking resulting in serious bodily injury, twenty-five years; and for carjacking resulting in death, life imprisonment or death. "[T]he serious bodily injury aspect of § 2119(2) was not included in the indictment or presented to the jury," Matthews I, 178 F.3d at 301, because Matthews's trial and sentencing preceded Jones. Nevertheless, Matthews received the benefit of Jones on his direct appeal, so "we vacate[d] Matthews' sentence for carjacking and remand[ed] to the district court for re-sentencing consistent with Jones and the lower maximum imprisonment of § 2119(1)." Id.

On the other hand, we affirmed the two-year enhancement of Matthews's conspiracy sentence under the criminal street gangs statute, 18 U.S.C. § 521. Section 521(b) states that "[t]he sentence of a person convicted of an offense described in subsection (c) shall be increased by up to 10 years if the offense is committed under the circumstances described in subsection (d)."² Subsection (d) identifies three facts necessary to increase a defendant's sentence under subsection (b): The defendant (1) "participates in a criminal street gang with knowledge that its members engage in or have engaged in a continuing series of offenses described in subsection (c)," (2) "intends to promote or further the felonious activities of the criminal street gang or maintain or increase his or her position in the gang," and (3) "has been convicted within the past 5 years" of a crime within several listed categories.³ 18 U.S.C. § 521(d).

Matthews challenged the § 521 enhancement as a violation of his Fifth and Sixth Amendment rights. "Matthews argue[d] that § 521 is a separate offense that must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict as required by the Fifth and Sixth Amendments." Matthews I, 178 F.3d at 302. Using the ordinary tools of statutory interpretation, we agreed with the district court that § 521 is a sentence enhancement statute, not a separate offense the elements of which must be pleaded in the indictment and proven to a jury beyond a reasonable doubt. Id. Thus, we affirmed the two-year enhancement of the conspiracy sentence based on evidence presented by the government "during the sentencing phase of the trial." Id. at 303.

B.

On remand, both parties sought more than a ministerial resentencing order. The government urged the court not only to sentence Matthews to fifteen years for simple carjacking under § 2119(1), but also to enhance this sentence by ten years under § 521 based on the court's earlier factual findings for the § 521 enhancement of the conspiracy sentence. Matthews, however, urged the court to reconsider the § 521 enhancement of the conspiracy sentence because the Supreme Court had decided Apprendi after our decision in Matthews I but before the district court resentenced him. He argued that Apprendi was an intervening change of law that effectively overruled our holding in Matthews I that the necessary facts for a § 521 enhancement need not be pleaded in the indictment and proven to a jury beyond a reasonable doubt. Further, for the same reasons, he argued against the government's requested § 521 enhancement of the carjacking sentence.⁴

The district court accepted the government's arguments and resentenced Matthews to fifteen years for simple carjacking under § 2119(1) but added a ten-year enhancement under § 521 based on its earlier factual findings. The court declined to reconsider its earlier two-year § 521 enhancement of the conspiracy sentence, thus achieving its original sentencing intent of twenty-five years for the carjacking offense and thirty-seven total years.

II.

Matthews appeals the § 521 enhancements of the carjacking and the conspiracy sentences. The enhancements rest on identical factual findings and thus pose one underlying legal question, namely, the validity, after Apprendi, of a § 521 enhancement based on facts not pleaded in the indictment and not proven to a jury beyond a reasonable doubt.

Before we reach the merits of this question, however, we must address two procedural questions. Matthews argues that the doctrine of law of the case permitted the district court to reconsider and vacate its § 521 enhancement of his conspiracy sentence and prohibited the court from enhancing his carjacking sentence under § 521. We agree with the former but not the latter. Thus, we may review both § 521 enhancements.

A.

"Under the law of the case doctrine, an issue of fact or law decided on appeal may not be reexamined either by the district court on remand or by the appellate court on a subsequent appeal." Tollett v. City of Kemah, 285 F.3d 357, 363 (5th Cir.2002) (citation omitted), cert. denied, ___ U.S. ___, 123 S.Ct. 105, 154 L.Ed.2d 141 (2002). Without this doctrine, cases would end only when obstinate litigants tire of re-asserting the same arguments over and over again. Moreover, the doctrine discourages opportunistic litigants from appealing repeatedly in hopes of obtaining a more sympathetic panel of this court. United States v. Becerra, 155 F.3d 740, 752 (5th Cir.1998). The doctrine of law of the case, in other words, is essential to the orderly administration of justice.

At the same time, law of the case is not a jurisdictional rule, but a discretionary practice. The doctrine "merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power." Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912).⁵ Law of the case therefore "is not inviolate." Becerra, 155 F.3d at 752. The doctrine has three exceptions: (1) The evidence at a subsequent trial is substantially different; (2) there has been an intervening change of law by a controlling authority; and (3) the earlier decision is clearly erroneous and would work a manifest injustice. Id. at 752-53.

These observations about law of the case extend as well to the so-called mandate rule, which is but a specific application of the general doctrine of law of the case. That rule "provides that a lower court on remand must implement both the letter and the spirit of the appellate court's mandate and may not disregard the explicit directives of that court." Id. at 753 (internal alterations and quotation marks omitted). The mandate rule, however, has the same exceptions as does the general doctrine of law of the case; these exceptions, if present, would permit a district court to exceed our mandate on remand. Id.

B.

The district court could have reconsidered, and this court can review, the § 521 enhancement of the conspiracy sentence, because Apprendi was an intervening change of law that effectively overruled our decision affirming this enhancement in Matthews I. In his first appeal, Matthews presciently anticipated the eventual ruling in Apprendi. He squarely argued that the necessary facts for a § 521 enhancement "must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict as required by the...