U.S. v. White, 03-2875.

• Decision Date: 03 May 2005
• Docket Number: No. 03-2875.,03-2875.
• Citation: 406 F.3d 827
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark A. WHITE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

406 F.3d 827

UNITED STATES of America, Plaintiff-Appellee, v. Mark A. WHITE, Defendant-Appellant.

No. 03-2875.

United States Court of Appeals, Seventh Circuit.

Submitted December 30, 2003.

Decided May 3, 2005.

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Melanie C. Conour (Submitted), Office of United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

William H. Dazey, Jr. (Submitted), Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellant.

Before RIPPLE, EVANS, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

In this successive appeal we consider the propriety of Mark A. White's sentence on his convictions for participating in a drug conspiracy and money laundering. White contends that our remand order following his initial appeal was limited in scope, solely permitting the district court to recalculate his sentence without the vacated murder cross-reference. Therefore, he reasons, the district court exceeded its authority when it applied an obstruction of justice enhancement to White's sentencing guideline calculation. White also asserts that the district court's findings of fact do not support the obstruction of justice enhancement, and that the imposition of the enhancement was in violation of the Supreme Court's recent decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Lastly, he argues that his Due Process rights were violated based on the lower prison sentence granted his codefendant. While we find that our remand order allowed the district court to consider the obstruction of justice enhancement, and that the sentence did not violate due process, we nonetheless remand White's case to the district court for reconsideration of his sentence consistent with this opinion and Booker.

I. BACKGROUND

We assume familiarity with the general facts of this case as set forth in United States v. Thompson, 286 F.3d 950 (7th Cir.2002). As this appeal is limited to Mark A. White, we will repeat only those facts pertinent to his conduct. A jury convicted White of participating in a conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846, and three counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i), (B)(i), and (h). During White's first sentencing hearing, the district court concluded, and we agreed, that Marcus Willis, an undercover law enforcement officer, was murdered in White's vehicle, a white Yukon. Thompson, 286 F.3d at 956-57. White aided in the cover-up of Willis's murder by lying to police officers about his whereabouts on the morning of and after the murder. He restated his lies under oath at his detention hearing, thereby actively participating in the cover-up. Moreover, he attempted to tamper with evidence of the murder by scheduling the Yukon to be repaired before police could examine the vehicle for evidence. Id. at 961 n. 4. However, after the conspirators' arrest but before the scheduled repair could take place, a police inspection of the Yukon revealed that the front passenger seat was removed, carpet from the front passenger side was cut out, damage to the left side of the front windshield was present, and Marcus Willis's blood was in the vehicle.

A. The Original Sentencing and First Appeal

At his original sentencing hearing, the district court sentenced White to life imprisonment after concluding that the conspiracy trafficked in more than five kilograms of cocaine and that the United States Sentencing Guidelines (U.S.S.G.) § 2D1.1(d)(1) murder cross-reference enhancement was applicable. The Presentence Report (PSR) also recommended increasing White's base offense level by two for obstruction of justice in accordance with U.S.S.G. § 3C1.1. The district court, however, chose not to apply the obstruction of justice enhancement because the murder cross-reference enhancement involved parallel relevant conduct and application of both enhancements would have amounted to double counting in violation of U.S.S.G. § 1B1.1.

In Thompson, 286 F.3d at 955, we affirmed White's convictions but remanded his case for resentencing. We held that the district court's factual findings did not sufficiently support the murder cross-reference enhancement because the record did not reveal that White could reasonably foresee that Willis could be killed with malice aforethought in furtherance of the conspiracy. Our remand language was general, instructing the district court to resentence White "consistent with our ruling." Id. at 961.

B. The Resentencing Hearing

Pursuant to our instructions, the district court resentenced White on June 13, 2003. Prior to White's resentencing, on November 15, 2002, Dennis Jones, White's co-conspirator, was resentenced. He was found guilty of the same criminal offenses as White and also lied to police about his whereabouts and participated in the murder's cover-up. At Jones's resentencing hearing, also done pursuant to this court's decision in Thompson, Chief Judge McKinney declined to add the obstruction of justice enhancement, reasoning:

It is true that those statements that I found to support the foreseeability of the murder aren't related to the offense of conviction in one way, but in another way they are. They are related to the ability of this conspiracy to successfully pursue its ends. I think it is a relatively difficult call to make at this point, and it is my view that I will not add that obstruction of justice at this point.

Despite Chief Judge McKinney's leniency with Jones, his analysis of the remand order and obstruction of justice enhancement led to a different result at White's resentencing hearing:

It seems to me that the remand is a narrow remand and it is for me to resentence Mr. White without the murder cross-reference. It is, I think, true that the findings that I made at the time that supported what I thought, or that I thought at the time supported a murder cross-reference are the same findings that could possibly then have supported an obstruction of justice .... I was concerned about it then as double counting. And so the issue today is on this remand, would it be permissible for the Court to take the findings that the Appellate Court determined did not support a murder cross-reference and use those same findings to support an obstruction of justice addition because there isn't any question of double counting anymore. [...] I think those findings made before do in fact support an obstruction of justice conclusion. [...] Again, the issue is whether under this narrow remand I can take that step. I don't believe there's anything in that remand that requires that those facts no longer be considered. And I will consider them.

Then, in agreement with the PSR's recommendation and the district court's own findings of fact, Chief Judge McKinney imposed the obstruction of justice enhancement, sentencing White to 480 for the drug conspiracy charge and to 240 months on each of the other three convictions, to be served concurrently. Jones, however, as a result of the court's decision not to apply the obstruction of justice enhancement, was sentenced to 350 months in prison.

II. DISCUSSION

White raises three issues on appeal. First, he asserts that the district court lacked jurisdiction to consider whether the obstruction of justice enhancement applies because it was beyond the scope of our remand. Second, he submits that even if the district court acted within the scope of remand, it clearly erred as its factual findings are not supported by the record, and were made in contravention of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Lastly, he claims that the disparity between his sentence and that of his co-conspirator Jones violates his Due Process rights. We address each of his arguments in turn.

A. Scope of Remand

White's contention that the district court acted outside the scope of the remand by adding the obstruction of justice enhancement to his offense level calculation is a question of law that we review de novo. United States v. Sumner, 325 F.3d 884, 888 (7th Cir.2003); United States v. Husband, 312 F.3d 247, 251 (7th Cir. 2002).

Title 28 U.S.C. § 2106 grants appellate courts flexibility in determining the scope of remand.¹ This Court has previously stated that in the sentencing context, "the statute authorizes us to `limit a remand to specific issues or to order complete resentencing.'" United States v. Young, 66 F.3d 830, 835 (7th Cir.1995) (quoting United States v. Polland, 56 F.3d 776, 777 (7th Cir.1995)). Both the law of the case doctrine and the mandate rule require the district court to adhere to the commands of this Court. See Husband, 312 F.3d at 250 n. 3 ("`law of the case' generally requires the district court to confine its discussion to the issues remanded") (internal citation omitted); Polland, 56 F.3d at 777-78 ("mandate rule requires a lower court to adhere to the commands of a higher court on remand"). The scope of a district court's power on remand is determined by the language of the order of remand. United States v. Buckley, 251 F.3d 668, 669 (7th Cir.2001). There is no formula for determining its scope. See Husband, 312 F.3d at 251 ("The court may explicitly remand certain issues exclusive of all others; but the same result may also be accomplished implicitly."). But see Young, 66 F.3d at 836 (suggesting that explicit language is required for a limited remand).

Our case law has characterized the scope of the remand issue using two analogies: (1) that upon remand the district court is presented with a "clean slate" or (2) the district court may "unbundle the sentencing package." There is no meaningful distinction in this phraseology. In United States v. Smith, 103 F.3d 531, 534 (7th Cir.1996), we held that the sentencing guidelines provide lower courts with the authority to restructure sentences when part of a sentence is vacated. We opined:

If a multicount sentence is a package—and we think...