U.S. v. Ticchiarelli

• Decision Date: 10 December 1998
• Docket Number: 98-1226,Nos. 98-1225,s. 98-1225
• Citation: 171 F.3d 24
• Parties: UNITED STATES of America, Appellee, v. Rinaldo TICCHIARELLI, Defendant, Appellant. United States of America, Appellee, v. Bradley Oliver Bowen, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 24

171 F.3d 24

UNITED STATES of America, Appellee, v. Rinaldo TICCHIARELLI, Defendant, Appellant.

United States of America, Appellee, v. Bradley Oliver Bowen, Defendant, Appellant.

Nos. 98-1225, 98-1226.

United States Court of Appeals, First Circuit.

Heard Dec. 10, 1998.

Decided March 19, 1999.

Margaret D. McGaughey, Assistant U.S. Attorney, with whom James M. Moore, Assistant U.S. Attorney, Timothy W. Wing, Assistant U.S. Attorney, Jonathan R. Chapman, Assistant U.S. Attorney, and Jay P. McCloskey, U.S. Attorney, were on brief, for appellee.

Leonard I. Sharon and Sharon, Leary & Detroy on brief for appellant Rinaldo Ticchiarelli.

Eric D. Cook on brief for appellant Bradley Oliver Bowen. Bradley Oliver Bowen on brief pro se.

Before TORRUELLA, Chief Judge, STAHL, LYNCH, Circuit Judges.

LYNCH, Circuit Judge.

These consolidated appeals arise out of the criminal cases against co-conspirators Bradley Bowen and Rinaldo Ticchiarelli for smuggling drugs into this country from Jamaica. This is their second appearance in this court. In their first appeal, we vacated the sentences of both men and remanded for resentencing. See United States v. Bowen, 127 F.3d 9, 15 (1st Cir.1997). These appeals from that resentencing raise important questions as to the doctrines which govern the scope of the proceedings on remand for resentencing, including whether the trial judge could properly consider, as part of the criminal history at resentencing, a new conviction which took place between the first and second sentencings.

Bowen, through counsel, argues that his second sentence was improper in that the district court (Hornby, J.) committed clear error in not revisiting its earlier, unappealed finding that Bowen was a manager, leader, or supervisor of the conspiracy under U.S.S.G. § 3B1.1(c). Bowen, pro se, argues that the underlying conviction should be vacated and that the district court erred in denying his Fed.R.Crim.P. 29 motion for a judgment of acquittal. None of the arguments has merit, and we affirm as to Bowen.

Ticchiarelli's appeal presents more difficult issues. He argues that the district court (Carter, J.) erred on remand in refusing to permit him to challenge the weight of the contraband used for purposes of calculating the Base Offense Level ("BOL"), a challenge that was concededly not made at the first sentencing and which is related to the issue remanded. Using the first issue as a fulcrum and arguing in the alternative, he also argues that counsel's performance at the first sentencing, if the weight issue has been waived, was constitutionally inadequate. Finally, he says that the court erred in factoring into his criminal history category a Florida conviction which occurred after his plea and first sentencing but before his resentencing. We vacate, on the first and last points, Ticchiarelli's sentence and remand for resentencing in accordance with this opinion.

I Prior Proceedings

On their first appeal from their sentences based on characterizing the majority of the contraband drugs as "hashish oil," Bowen and Ticchiarelli argued that the use of the term "hashish oil" in Sentencing Guideline § 2D1.1 without a definition (prior to November 1995) was unconstitutional. Alternatively, they argued that the rule of lenity required any ambiguity in the definition of "hashish oil" to be resolved in their favor--namely, that they were entitled to a finding that the substance they smuggled, a marihuana-based substance, was not hashish oil for sentencing purposes. ¹ Bowen did not, however challenge the district court's finding that his role in the offense warranted an increase pursuant to Sentencing Guideline § 3B1.1(c). And Ticchiarelli chose not to challenge--either at the first sentencing or on appeal--the weight of the hashish oil that was attributed to him. See Bowen, 127 F.3d at 12.

The court ruled that the definition of hashish oil was ambiguous, and that the district court should have applied the rule of lenity and considered the substance at issue to be marihuana, not hashish oil. See id. at 13-14. This court rejected Bowen's other claims, vacated the defendants' sentences, and remanded the case for sentencing pursuant to the opinion. See id.

II

A. Bowen

1. Role in the Offense

After trial Bowen was first sentenced as a manager, supervisor, or leader of the conspiracy under U.S.S.G. § 3B1.1. His first appeal raised a number of issues, but did not question the court's determination that he was a manager or leader.

At the second sentencing, Judge Hornby declined to reopen the managerial role finding, noting there had been no appeal from that decision at the first sentencing and that, under the law of the case doctrine, the district court was not required to reopen. The court was plainly correct. This is not a question of what leeway there is to explore on remand an issue directly related to the matter being remanded. This is rather a question of whether a party, not having appealed from an aspect of explicit findings and conclusions at sentencing, is free on remand as to a different unrelated issue to require the court to hear that aspect again.

The court's finding, Bowen says, reflects a flawed interpretation of the Guidelines, and he urges us to review the decision de novo. See United States v. Camilo, 71 F.3d 984, 986 (1st Cir.1995) (noting that the review of a district court's legal interpretation of the Guidelines is de novo). Bowen's argument misses the relevant point and applicable law. If we reached the merits of his argument we would recognize that "[t]he determination of an individual's role in committing an offense is necessarily fact-specific." United States v. Cruz, 120 F.3d 1, 3 (1st Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 729, 139 L.Ed.2d 667 (1998). Our review of the district court's findings, therefore, would be conducted with "considerable deference." Id. at 3. "Absent an error of law ... the sentencing court's determinations [would be] set aside only for clear error." Id. But the initial question is whether the district court was correct in not hearing the matter again. The court was correct on the law and to the extent it had discretion, there was no abuse of discretion.

In United States v. Bell, 988 F.2d 247 (1st Cir.1993), ("Bell II ") this court described the general rule as to whether a criminal defendant on a remand for resentencing may reopen explicit findings and conclusions which had been left in repose because there had been no appeal as to them:

The black letter rule governing this point is that a legal decision made at one stage of a civil or criminal case, unchallenged in a subsequent appeal despite the existence of ample opportunity to do so, becomes the law of the case for future stages of the same litigation, and the aggrieved party is deemed to have forfeited any right to challenge that particular decision at a subsequent date. Abandoning this prudential principle would threaten the important policy considerations underlying the law of the case doctrine, such as stability in the decision making process, predictability of results, proper working relationships between trial and appellate courts, and judicial economy.

Bell II, 988 F.2d at 250 (internal citations and quotation marks omitted).

In the proceedings prior to Bell II, the defendant, Richard Bell, had appealed the district court's finding that his conviction for receipt and possession of a firearm by a convicted felon was a "crime of violence." See United States v. Bell, 966 F.2d 703, 703-04 (1st Cir.1992) ("Bell I "). The district court's finding triggered a sentence enhancement under the Guidelines' career offender provision, see U.S.S.G. § 4B1.1, and was the sole ground for Bell's first appeal. See id.; see also U.S.S.G. § 4B1.4 (implementing the enhanced sentence provision of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), for defendants with at least three prior convictions for violent felonies or serious drug offenses). We agreed with Bell, vacated his sentence, and remanded for resentencing. See Bell I, 966 F.2d at 707. At resentencing, Bell "for the first time sought to challenge the validity of his prior convictions [for violent felonies] and, through that medium, his ACCA status." Bell II, 988 F.2d at 249. We held that the district court was not obligated on remand to entertain his belated challenge. See id. at 250-52.

Attempting to draw a meaningful distinction between this case and Bell II, Bowen seizes a clause from a recent decision of this court, and reaches for an argument. He quotes from Flibotte v. Pennsylvania Truck Lines, Inc., 131 F.3d 21 (1st Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1806, 140 L.Ed.2d 945 (1998), a civil case concerning whether a successor judge, "in the context of a single trial of a single case in a single court, with no intervening appeal," id. at 25, could depart from a prior holding:

[T]he venerable law of the case doctrine ... states in the large that, unless corrected by an appellate tribunal, a legal decision made at one stage of a civil or criminal case constitutes the law of the case throughout the pendency of the litigation.

Id. (emphasis added).

Bowen's argument is that the role-in-the-offense finding was not "corrected by an appellate tribunal"--because it was not raised by appellant--and so the law of the case doctrine cannot apply here. This argument misses the basic point of the doctrine, addressed directly in Bell II: findings and conclusions that are not appealed and are not related to the issues on appeal are treated as settled, unless they fall within an exception to the law of the case doctrine. See Bell II, 988 F.2d at 250-51; see also United States v. Rivera-Martinez, 931 F.2d 148, 151 (1st Cir.1991) (recognizing the presence of "exceptional circumstances" where there is new evidence in a subsequent trial, the controlling legal authority has changed, or the court's decision was clearly erroneous and...