U.S. v. Moore

• Decision Date: 11 December 1997
• Docket Number: No. 96-5852,96-5852
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth R. MOORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 595

131 F.3d 595

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth R. MOORE, Defendant-Appellant.

No. 96-5852.

United States Court of Appeals Sixth Circuit.

Argued Oct. 20, 1997

Decided Dec. 11, 1997.

Allen E. Schwartz (argued and briefed), Knoxville, TN, for Defendant-Appellant.

Hugh B. Ward, Jr. (argued and briefed), Office of the U.S. Attorney, Knoxville, TN, for Plaintiff-Appellee.

Before: MERRITT, MOORE, and BRIGHT, Circuit Judges. ^*

MOORE, J., delivered the opinion of the court, in which BRIGHT, J., joined. MERRITT, J. (pp. 600-601), delivered a separate opinion concurring in part and dissenting in part.

OPINION

MOORE, Circuit Judge.

Defendant-Appellant Kenneth R. Moore appeals again in connection with his conviction and sentence for possession of a controlled substance with intent to distribute and for use of firearms in relation to a drug-trafficking crime. For the reasons that follow, we reverse.

I. BACKGROUND

In his first appeal, in an unpublished opinion, we affirmed Moore's conviction and sentence for possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and for use of firearms in connection with a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1). ¹ See United States v. Moore, 70 F.3d 1273, No. 94-6591, 1995 WL 704162, at * 1 (6th Cir. November 28, 1995) (Moore I ). After we decided Moore's first appeal, the United States Supreme Court decided Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), and endorsed a narrower definition of use of a firearm under § 924(c) than we had applied previously in this circuit. As a result, on petition for rehearing, we vacated Moore's § 924(c) conviction and remanded the case to the district court to determine whether there existed sufficient evidence to support Moore's conviction under that statute. See United States v. Moore, 76 F.3d 111, 114 (6th Cir.1996) (Moore II ). We adhered to our previous decision in all other respects. Id.

On remand, the United States moved to dismiss with prejudice the § 924(c) conviction. After granting the government's motion, the district court resentenced Moore to forty-one months' incarceration, three years' supervised release, and a $50 special assessment. J.A. at 510-11. The court arrived at this sentence by including in Moore's base-offense level the cocaine from Count Two of the indictment, as it had done in the original sentencing. The court then altered its prior sentencing calculation by enhancing Moore's sentence two levels for the possession of firearms during the commission of a drug crime. J.A. at 507-09. Upon receiving his sentence, Moore filed this timely appeal.

On appeal, Moore asserts that the district court committed two errors: including the cocaine from Count Two in setting his base-offense level, and giving him a two-level enhancement for possessing guns in connection with a drug crime. Appellant's Br. at 10.

II. JURISDICTION

The district court properly exercised jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

III. ANALYSIS

While both parties vigorously contest the merits of this appeal, neither party discusses the central issue: whether the district court exceeded our remand order in Moore II. In that case, our remand order read as follows:

We therefore VACATE Moore's section 924(c)(1) conviction and REMAND for further proceedings, in which both parties can have the opportunity to focus on the facts and law relevant to proving that Moore used or carried a firearm during and in relation to his drug trafficking offense. We adhere to our previous opinion in all other respects.

Moore, 76 F.3d at 114. 28 U.S.C. § 2106 provides appellate courts with the authority to grant general or limited remands. ² See Super X Drugs Corp. v. FDIC, 862 F.2d 1252, 1256 (6th Cir.1988) (issuing limited remand under § 2106). Accord United States v. Young, 66 F.3d 830, 835 (7th Cir.1995) ("Pursuant to 28 U.S.C. § 2106, we may issue general or limited remands to the district courts."). A general remand allows the district court to resentence the defendant de novo, which means that the district court may redo the entire sentencing process including considering new evidence and issues. See, e.g., United States v. Hebeka, 89 F.3d 279, 284 (6th Cir.1996) (" '[T]here appears to be no prohibition in the guidelines ... keeping a district court judge from revisiting the entire sentencing procedure unless restricted by the remand order.' ") (quoting United States v. Duso, 42 F.3d 365, 368 (6th Cir.1994)) (emphasis added). Conversely, a limited remand constrains the district court's resentencing authority to the issue or issues remanded. In Duso we explained that "[i]t is possible, as occurs in many cases, that the remand would be a limited one which would not allow the district judge to make a de novo review of the sentencing procedure." Duso, 42 F.3d at 368. Therefore, the question here is whether our remand order was general or limited. If we issued a general remand, then the district court retained the authority to consider the relevant conduct and enhancement issues. However, if we issued a limited remand, then the district court exceeded our remand order by considering those issues.

The interpretation of the mandate is a legal issue which we review de novo. Pennington v. Doherty, 110 F.3d 502, 506 (7th Cir.1997). In the absence of an explicit limitation, the remand order is presumptively a general one. As we held in United States v. Jennings, 83 F.3d 145 (6th Cir.1996), "[o]n remand, the only constraint under which the District Court must operate, for the purposes of resentencing, is the remand order itself. Where the remand does not limit the District Court's review, sentencing is to be de novo." Id. at 151. See also United States v. Moored, 38 F.3d 1419, 1422 (6th Cir.1994) ("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 ....") (quotation omitted). Consequently, where an appellate court simply vacates a sentence and remands to the district court for "resentencing," that order is considered a general one that allows the district court to resentence the defendant de novo. See, e.g., Young, 66 F.3d at 836; United States v. Caterino, 29 F.3d 1390, 1394-95 (9th Cir.1994); United States v. Cornelius, 968 F.2d 703, 705-06 (8th Cir.1992).

In Young, Caterino, and Cornelius, the appellate courts issued orders vacating the defendants' sentences or reversing the defendants' convictions and remanding to the district court for resentencing. In each instance, on a subsequent appeal, the court construed its remand order as general rather than specific because the order contained no limiting language. It simply directed the district court to resentence the defendant. For example, in Young, the defendant appealed his sentence twice. On his third appeal, he again challenged his sentence contending that the district court exceeded the scope of the remand. In rejecting the defendant's challenge, the appellate court reiterated its remand order which stated that "[w]e therefore vacate the district court's sentence and remand the case for resentencing consistent with this opinion." Young, 66 F.3d at 836. After restating its remand order, the appellate court declared that "[o]ur order in no way constrained the scope of the issues the district court could consider on resentencing...." Id. Similarly, in Caterino, the defendant challenged the district court's authority to consider issues outside the remand order. The appellate court rejected the defendant's contention, noting that it had issued the following general remand order: "[T]he district court erred by adding multiple vulnerable victim adjustments to Appellant['s] offense level under the Guidelines. We therefore VACATE ... Caterino['s] sentence[ ] and REMAND for resentencing." Caterino, 29 F.3d at 1394 (alterations in original). According to the appellate court, "[t]his remand order did not expressly limit the district court to correcting the vulnerable victim adjustment." Id. Thus, the district court could resentence the defendant de novo. Id. at 1395. Finally, in Cornelius, the district court interpreted the appellate court's remand order as prohibiting it from consider new evidence regarding the defendant's status as an armed career criminal. The remand order announced that "we reverse the district court's determination that Cornelius was not an armed career criminal ... and remand for resentencing." Cornelius, 968 F.2d at 705. The appellate court in commenting on its remand order concluded that "[w]e did not limit the district court's further determination of whether Cornelius was an armed career criminal." Id. at 706. Each one of those cases involved a remand order that simply vacated or reversed the sentence imposed by the district court and remanded for resentencing. The orders placed no limitations on the scope of the remand. As such, those orders were general rather than limited.

Although the mandates in Young and Cornelius were general, even those two courts recognized that "the 'mandate rule' requires the district court to adhere to our commands on remand." Young, 66 F.3d at 835. Accord Cornelius, 968 F.2d at 705 ("The sentencing court must, however, adhere to any limitations imposed on its function at resentencing by the appellate court."). In United States v. Moored, 38 F.3d 1419 (6th Cir.1994), we instructed that

[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...