United States v. Pineiro

• Decision Date: 09 November 2006
• Docket Number: No. 06-30242.,06-30242.
• Citation: 470 F.3d 200
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Francisco D. PINEIRO, also known as, Frank Pineiro, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

470 F.3d 200

UNITED STATES of America, Plaintiff-Appellant, v. Francisco D. PINEIRO, also known as, Frank Pineiro, Defendant-Appellee.

No. 06-30242.

United States Court of Appeals, Fifth Circuit.

November 9, 2006.

COPYRIGHT MATERIAL OMITTED

Camille Ann Domingue, Asst. U.S. Atty., Lafayette, LA, for U.S.

Wayne Joseph Blanchard, Lafayette, LA, for Pineiro.

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

Before KING, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:

This appeal arises out of the post-Booker resentencing of Defendant-Appellee Francisco D. Pineiro.¹ The facts and circumstances that frame this third appeal of Pineiro's sentence are adequately captured in United States v. Pineiro, 377 F.3d 464 (5th Cir.2004) ("Pineiro I"), and United States v. Pineiro, 410 F.3d 282 (5th Cir. 2005) ("Pineiro II"). For the sake of brevity, therefore, we reiterate only those facts that are relevant to this appeal.

I. FACTS AND PROCEEDINGS

In February 2002, Pineiro was indicted on one count of conspiracy to distribute 100 kilograms or more of marijuana and 50 grams or more of cocaine powder in violation of United States Code, title 21, section 846, and on two counts of possession with intent to distribute and aiding and abetting the possession with intent to distribute marijuana in violation of United States Code, title 21, section 841(a)(1) and title 18, section 2. At the conclusion of Pineiro's jury trial in October 2002, the jury returned a guilty verdict on all three counts. In its response to a special drug-quantity interrogatory, the jury found Pineiro guilty of conspiring to distribute less than 50 kilograms of marijuana and 50 grams or less of cocaine.

In December 2002, a probation officer issued the customary Presentence Investigation Report ("PSR"). The PSR concluded that Pineiro was responsible for 453.6 kilograms of marijuana and 1,048.95 grams of cocaine.² This produced a base offense level of 28. The PSR recommended that Pineiro receive a four-level sentence enhancement for his role as a leader or organizer of the conspiracy. This produced a total offense level of 32. And, as Pineiro had no prior convictions, his criminal history category was I. The combination of Pineiro's total offense level of 32 and criminal history category of I resulted in a guideline sentencing range of 121 to 151 months imprisonment.

Pineiro made several objections to the PSR, two of which were relevant to Pineiro I. First, in reliance on Apprendi v. New Jersey,³ he asserted that he should be sentenced on the basis of the drug quantity found by the jury, not the quantity set forth in the PSR. Second, he contended that there was insufficient evidence offered at trial to support his organizer-leader enhancement.

At Pineiro's sentencing hearing in April 2003, the district court overruled his objections and sentenced him to 121 months imprisonment on Count 1 and 60 months imprisonment on each of Counts 2 and 3, with all sentences to run concurrently. Pineiro timely filed a notice of appeal.

While the first appeal was pending in this court, the Supreme Court decided Blakely v. Washington.⁴ After supplemental briefing on whether Blakely applied to sentencing under the federal sentencing guidelines, and after oral argument in this court on all issues, we affirmed Pineiro's sentence, holding that Blakely did not affect the federal sentencing guidelines and that the district court's non-jury drug quantity finding and organizer-leader enhancement were not erroneous.⁵

Pineiro then filed a petition for certiorari in the Supreme Court. After issuing its opinions in Booker, the Court granted Pineiro certiorari, vacated our judgment, and remanded the matter to us for further consideration in light of Booker.⁶

On remand from the Court, we held in Pineiro II that the prosecution could not meet its burden of showing beyond a reasonable doubt that the district court would have imposed the same sentence under an advisory guideline. We concluded that in accordance with Booker, Pineiro was entitled to resentencing, so we remanded the case to the district court for resentencing.⁷

On remand from us, the district judge who had presided over Pineiro's trial and sentencing entered an order transferring the case to another district judge. Prior to being resentenced by the second judge, Pineiro again urged the district court to sentence him based on the drug quantities found by the jury and not to apply the four-level organizer-leader enhancement. Pineiro urged in the alternative that if these objections were overruled, the court should depart downward from the advisory range.

At Pineiro's resentencing in early 2006, the district court elected to re-visit Pineiro's original guideline sentencing range for the two reasons originally and again advocated by Pineiro—the non-jury drug quantity findings and the organizer-leader enhancement. First, based on Apprendi and Booker, the district court accepted Pineiro's drug quantity argument and concluded that it was bound by the jury's determination as to the lesser quantity of drugs for which Pineiro was responsible. Second, as to the organizer-leader enhancement, the district court rejected Pineiro's contention. Accordingly, the district court reduced Pineiro's total offense level to 22, reflecting its use of the quantity of drugs found in the special jury interrogatory and its application of the organizer-leader enhancement. This produced an advisory range of 63 to 78 months imprisonment. The court then imposed a sentence of 63 months imprisonment on Count 1 and 60 months imprisonment on each of Counts 2 and 3, all sentences to run concurrently. The government timely filed a notice of appeal, which brings this matter before us today.

II. LAW AND ANALYSIS

A. Standard of Review

In this appeal following remand in Pineiro II, the government argues that the district court's recalculation of Pineiro's sentencing guideline range violated the mandate rule—a facet of the law-of-the-case doctrine. We review de novo a district court's interpretation of our remand order, including whether the law-of-the-case doctrine or mandate rule forecloses any of the district court's actions on remand.⁸

Pineiro contends that we should review the government's appeal under a plain error standard, not de novo. He argues that, because the government failed to object to the district court's recalculation at the time of resentencing, we must conduct our review under the more deferential plain error standard. This argument fails.

In determining the sufficiency of objections to preserve issues for appeal, we apply "`the general principle that an objection which is ample and timely to bring the alleged . . . error to the attention of the trial court and enable it to take appropriate corrective action is sufficient to . . . preserve the claim for review.'"⁹ We have never required a party to express its objection in minute detail or ultra-precise terms.¹⁰

Despite never explicitly mentioning the law-of-the-case doctrine or the mandate rule, the government made clear at the resentencing hearing its objection to the district court's revisiting and recalculating Pineiro's total offense level. For example, counsel for the government made the following statements: (1) "I don't think you can throw out the guideline range. The calculation begins—I think the purpose is that there is a guideline range and those—that information, the drug quantity was properly calculated in that guideline range. I think the Fifth Circuit has spoke [sic] to that;" (2) "I think now—obviously now it is not mandatory, but it certainly doesn't negate Probation calculating that amount for relevant conduct purposes;" (3) "the guideline issues are no longer mandatory. They're advisory as in any case. The Defense put on evidence. I mean, the Defense objected with [the original district judge] and he rejected it. He rejected their argument then, and in saying that mandatory or not, he believed it . . . . [E]ven though it was mandatory and not advisory, I think that's the issue now, not that the guideline range was inappropriate to calculate it;" (4) "Now those guideline range [sic], the Government submits, are still appropriate, but this Court is well aware they're advisory only. That's an issue that exist [sic] here post-Booker;" (5) "So I think, again, the issue is not to the calculation aspect of it, it's simply an issue whether the Court will stay within the guideline range or find a reason to deviate from them, because they're now advisory, giving the Court the opportunity to go below or above that range;" and (6) "Whether or not [the original district judge] felt [the sentencing guideline range] was mandatory or not, I think it's why we're here." These statements, along with others, were sufficient to preserve the government's objection implicating the mandate rule and entitles it to a de novo review.

B. Applicable Law

The mandate rule, which is a corollary or specific application of the law of the case doctrine,¹¹ prohibits a district court on remand from reexamining an issue of law or fact previously decided on appeal and not resubmitted to the trial court on remand.¹² This prohibition covers issues decided both expressly and by necessary implication, and reflects the jurisprudential policy that once an issue is litigated and decided, "`that should be the end of the matter.'"¹³ This rule is essential to the orderly administration of justice, as it is aimed at preventing obstinate litigants from repeatedly reasserting the same arguments and at discouraging opportunistic litigants from appealing repeatedly in the hope of acquiring a more favorable appellate panel.¹⁴

When on remand the district court assays to implement the mandate, it must proceed within the letter and spirit of the mandate by taking into account the appeals court's opinion and the circumstances it embraces.¹⁵ In the context of remands for...