U.S. v. Webb, 95-3393

• Citation: 98 F.3d 585
• Decision Date: 21 October 1996
• Docket Number: No. 95-3393,95-3393
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edgar Wayne WEBB, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 585

98 F.3d 585

UNITED STATES of America, Plaintiff-Appellee, v. Edgar Wayne WEBB, Defendant-Appellant.

No. 95-3393.

United States Court of Appeals, Tenth Circuit.

Oct. 21, 1996.

Marilyn M. Trubey, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with her on the brief), for defendant-appellant.

Thomas G. Luedke, Assistant United States Attorney (Jackie N. Williams, United States Attorney, and Gregory G. Hough, Assistant United States Attorney, on the brief), for plaintiff-appellee.

Before EBEL, LOGAN, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Edgar Wayne Webb was convicted of one count of marijuana possession, two counts of possession of unregistered firearms, and two counts of possession of firearms not identified by serial numbers. He appeals his firearms convictions and his sentence. We affirm defendant's sentence and dismiss his attack on his firearms convictions for lack of jurisdiction.

I.

This is the second appeal in this case. In the first appeal, the government challenged the district court's decision to depart downward from the applicable sentencing guideline range. United States v. Webb, 49 F.3d 636 (10th Cir.) (Logan, J., dissenting) (Webb I), cert. denied --- U.S. ----, 116 S.Ct. 121, 133 L.Ed.2d 71 (1995). Defendant did not file a direct appeal or a cross-appeal to challenge either his convictions or any aspect of his sentencing. The Webb I panel described the basic facts of the case:

As part of a marijuana eradication effort, the Morris County sheriff, the Kansas National Guard, and the Kansas Bureau of Investigation (KBI) engaged in surveillance efforts to locate cultivated marijuana. Aerial surveillance revealed marijuana at defendant Edgar Wayne Webb's residence. The sheriff and a KBI agent confirmed that observation by viewing defendant's yard from a nearby football field. The next day, KBI agents executed a search warrant and found 142 cultivated marijuana plants in a fenced area of defendant's backyard. Defendant consented to a search of his house, where agents found additional marijuana. They also discovered a .22 caliber semiautomatic rifle with a homemade silencer attached and a second, partially-complete homemade silencer.

Defendant cooperated throughout the agents' search and admitted to cultivating the marijuana. He showed the agents his "personal stash" of marijuana and stated that he was addicted to the substance. Defendant asserted that he grew the marijuana for his own use and that he neither sold nor gave it away.

A jury convicted defendant of possession of marijuana in violation of 21 U.S.C. § 844(a), and of possession of unregistered firearms and firearms not identified by a serial number in violation of 26 U.S.C. § 5861(d) and (i). [Note: Defendant was acquitted of possessing marijuana with intent to distribute and of using a firearm in relation to a drug trafficking crime.] The Sentencing Guidelines prescribed a range of twenty-seven to thirty-three months imprisonment for these offenses. The district court, however, sentenced defendant to three years probation (including six months of home confinement).

Id. at 637. In Webb I, this court agreed with the government that the district court erred in granting a downward departure from the sentence guideline range prescribed by the Sentencing Guidelines and remanded the case to the district court for resentencing. This court held the circumstances relied upon by the district court in departing downward were typical circumstances already considered by the Sentencing Commission in formulating the guideline range and, therefore, could not justify a downward departure. In remanding, this court directed the district court to impose a sentence within the guideline range of 27-33 months. On remand, the district court sentenced defendant to a term of imprisonment of 27 months, the low end of the guideline range. Defendant subsequently filed this appeal and is currently free on bond pending the outcome of the appeal.

II.

A. Did the district court err in concluding it did not have discretion to depart downward from the guideline range at the time of resentencing?

At the time of resentencing, defendant asked the district court to depart downward from the guideline range, based on a combination of three factors: (1) defendant's psychiatric history and condition; (2) the need for defendant to care for his minor son; and (3) the unsophisticated nature of the silencers. ¹ Notably, these were the same factors relied upon by the district court in departing downward at the time of the original sentencing. At the resentencing hearing, the court rejected defendant's request, stating: "I don't think sending this man to the penitentiary is the right thing to do but I don't think I have any option. And for that reason, the request of the defense for the relief sought is denied." R 9 at 13.

On appeal, defendant argues the district court erred in concluding it did not have discretion to depart downward. Although defendant acknowledges this court previously rejected each of the three cited factors as a basis for downward departure, he nevertheless claims it would have been appropriate for the district court to consider the factors in combination and depart downward based on that combination. According to defendant, neither the law of the case doctrine nor the mandate rule prevented the district court from departing downward.

Under the law of the case doctrine, findings made at one point during litigation become the law of the case for subsequent stages of that same litigation. United States v. Bell, 988 F.2d 247, 250 (1st Cir.1993). A complementary theory, the mandate rule, "generally requires [district] court conformity with the articulated appellate remand," but the mandate rule "is a discretion-guiding rule subject to exception in the interests of justice." United States v. Moore, 83 F.3d 1231, 1234 (10th Cir.1996). A district court may depart from an appellate court's mandate under exceptional circumstances, including "(1) a dramatic change in controlling legal authority; (2) significant new evidence that was not earlier obtainable through due diligence but has since come to light; or (3)[if] blatant error from the prior sentencing decision would result in serious injustice if uncorrected." Id.

Reviewing this court's directions to the district court in Webb I, we conclude the mandate rule prohibited the district court from departing downward from the guideline range enunciated. Although resentencing on remand is typically de novo, this does not hold true where an appellate court has specifically limited a district court's discretion. United States v. Bell, 5 F.3d 64, 67 (4th Cir.1993) (similar to Webb I in terms of appellate court mandate). Here, the Webb I panel specifically instructed the district court to resentence defendant within the guideline range of 27-33 months and did not grant the court the opportunity to consider mitigating factors. Stated differently, the mandate in Webb I directed the district court to do one thing on remand--impose a sentence within the 27- to 33-month range. In fact, it was this very limitation on the district court's sentencing discretion which the dissent in Webb I protested. The district court could have deviated from the Webb I panel's directions only if one of the exceptional circumstances outlined above existed. The district court on remand did not find any such circumstances existed and defendant does not argue on appeal that such circumstances existed.

Although defendant correctly noted the Webb I panel did not specifically address the combination of factors as a possible justification for downward departure, we conclude the "combination" theory was implicitly rejected by the Webb I panel. This assumption is based on the fact that Webb I specifically addressed and rejected each of the three individual factors. Nothing in the opinion suggests a combination of the three factors would be sufficient to allow a downward departure. Our conclusion is bolstered by the fact that, after Webb I was issued, defendant filed a motion for rehearing in which he asserted his combination theory. It is obvious the panel intended to reject the combination theory by denying that motion. The district court did not err in refusing to consider a combination of factors as possible justification for downward departure.

B. Did the district court err in enhancing defendant's base offense level pursuant to U.S.S.G. § 2K2.1(b)(4)?

At the time of defendant's original sentencing, the district court imposed a two-level enhancement to defendant's offense level pursuant to U.S.S.G. § 2K2.1(b)(4), which provides for an upward adjustment "[i]f any firearm was stolen, or had an altered or obliterated serial number." Defendant objected to the enhancement. The court overruled his objection and stated as its basis for application of this section the seizure by law enforcement authorities from defendant's residence of a Raven Arms .25 caliber semiautomatic pistol that had no serial number. The court held:

As to the defendant's formal objection, the presentence investigation report is correctly prepared with respect to this issue regarding the enhancement for the specific offense...