United States v. Hicks

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 9 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 96-3288

MICHAEL RAY HICKS,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D. Ct. No. 94-10058-01)

Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal
Public Defender, with him on the briefs), Office of the Federal Public Defender
for the District of Kansas, Wichita, Kansas, appearing for the Defendant-
Appellant.

Randy M. Hendershot, Assistant U.S. Attorney (Jackie N. Williams, U.S. Attorney
and D. Blair Watson, Assistant U.S. Attorney, on the brief), Office of the United
States Attorney, Wichita, Kansas, appearing for the Plaintiff-Appellee.

Before TACHA, McKAY, and MURPHY, Circuit Judges.

TACHA, Circuit Judge.
 INTRODUCTION

Defendant Michael Ray Hicks was convicted of possession with intent to

distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. §

2; possession with intent to distribute marijuana, also in violation of 21 U.S.C. §

841(a)(1) and 18 U.S.C. § 2; interstate transportation of a stolen vehicle in

violation of 18 U.S.C. § 2313; and using or carrying a firearm in relation to a

drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). The facts

underlying Hicks’s convictions are set forth in our published opinion addressing

his previous appeal and need not be repeated here. See United States v. Miller,

84 F.3d 1244, 1248-49 (10th Cir.), cert. denied, 117 S. Ct. 443 (1996), overruled

by United States v. Holland, 116 F.3d 1353 (10th Cir.), cert. denied, 118 S. Ct.

253 (1997). Hicks received a total sentence of 248 months for these convictions;

specifically, he received concurrent sentences of 188 months for each of the two

drug offenses and the vehicle offense, plus a consecutively running sentence of 60

months for the section 924(c) offense. See 18 U.S.C. § 924(c)(1) (imposing

mandatory 5-year sentence to run consecutively with any sentence for an

underlying drug offense(s)). Hicks appealed his convictions and sentence. This

court affirmed the convictions on the possession charges and the vehicle offense,

but we reversed the section 924 conviction and vacated that sentence upon

concluding that the jury instruction defining “use” of a firearm was legally

-2-
erroneous in light of Bailey v. United States , 516 U.S. 137 (1995). See Miller , 84

F.3d at 1262-63. We remanded for a new trial to determine whether Hicks had

“carried” a firearm in violation of section 924(c)(1). 1

After our remand, the government decided not to retry the defendant on the

section 924 charge. At the government’s request, the district court then

resentenced Hicks on the remaining drug offenses and found that it should apply a

two-level enhancement under section 2D1.1(b)(1) of the Sentencing Guidelines,

based on Hicks’s possession of a firearm during the commission of the drug

offenses. See U NITED S TATES S ENTENCING G UIDELINES M ANUAL (U.S.S.G.)

1
In Holland, we held that a section 924(c)(1) conviction for “use or carry” can be
affirmed even if the “use” instruction was legally erroneous under Bailey so long as the
jury’s verdict necessarily included a finding of all the elements of the “carry” prong. See
Holland, 116 F.3d at 1359. That holding differed from our decision in Hicks’s original
appeal in this case, United States v. Miller, in which we remanded for a new trial on the
“carry” issue. See Miller, 84 F.3d at 1257-58. Through a footnote in Holland that was
approved by the en banc court, we explicitly overruled the analysis used in Miller and
noted that Hicks’s case, among others, would have turned out differently under the new
analysis. See Holland, 116 F.3d at 1359 n.4. While this appeal was pending, the
government filed supplemental authority suggesting that we remand this case to the
district court for reinstatement of Hicks’s section 924 conviction in light of Holland.
However, “[o]ur appellate review is limited to final judgments or parts thereof that are
designated in the notice of appeal.” Cunico v. Pueblo School Dist. No. 60, 917 F.2d 431,
444 (10th Cir. 1990). This appeal is limited to reviewing the district court’s decision to
resentence on the drug convictions. See Notice of Appeal (appealing resentencing).
Therefore, the government’s proposal is outside the scope of this appeal. Although we
decline to express an opinion at this time regarding the possibility of reinstating the
defendant’s section 924(c)(1) conviction, the government is free to raise its argument in
the district court.

-3-
§ 2D1.1(b)(1) (1995 2
) (“If a dangerous weapon (including a firearm) was

possessed [during the drug offense], increase [the base offense level] by 2

levels.”). Prior to our vacation of his section 924 conviction, Hicks had been

immune from this enhancement. In order to avoid “double counting” of the

weapon factor, the Guidelines specify that when a defendant is convicted and

sentenced under section 924(c)(1) for using or carrying a weapon during the

commission of a drug offense, he cannot also have his sentence for the drug

offense enhanced based on the weapon possession. See U.S.S.G. § 2K2.4

commentary (background). However, once we reversed Hicks’s section 924

conviction and vacated the corresponding sentence, and the government chose not

to retry the section 924 charge, this impediment to applying the 2D1.1(b)(1)

enhancement disappeared. Accordingly, the district court agreed to the

government’s request for resentencing.

As a result of the resentencing, Hicks’s new sentence totals 235 months;

without the resentencing, our vacation of his section 924 sentence would have left

him with a total sentence of only 188 months. The defendant objects to the

2
As a general rule, we refer to the version of the guidelines that was in effect at
the time of the defendant’s sentencing. See United States v. Moudy, 132 F.3d 618, 620
n.1 (citing U.S.S.G. § 1B1.11(a)). At the time of Hicks’s original sentencing, the 1994
edition of the guidelines manual was in effect, while at the time of his resentencing, the
1995 version was in effect. The sentencing provisions relevant to this appeal are the
same in both editions.

-4-
resentencing on the grounds that it violates the mandate of this court. We

exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and affirm.

DISCUSSION

The mandate rule is a “discretion-guiding rule” that “generally requires trial

court conformity with the articulated appellate remand,” subject to certain

recognized exceptions. 3
United States v. Moore , 83 F.3d 1231, 1234 (10th Cir.

1996). However, “where the appellate court has not specifically limited the scope

of the remand, the district court generally has discretion to expand the

resentencing beyond the sentencing error causing the reversal.” Id. Thus, the

question here is whether we specifically limited the scope of remand so as to

prevent the district court from resentencing on the remaining convictions after the

government decided not to retry the section 924(c)(1) charge. 4
To answer this

question we must look at the language of the mandate.

In our mandate, we stated that “the judgment . . . is affirmed in part and

reversed in part” and ordered the case remanded “for further proceedings in

accordance with the opinion of this court.” Judgment, United States v. Hicks , No.

3
Because we hold that the district court did not exceed the bounds of our mandate,
we need not examine whether any of the exceptions to the mandate rule applies to the
district court’s resentencing.
4
To the extent that Hicks argues that the district court exceeded its jurisdiction by
allegedly violating our mandate, his contention is unsupported by the law of this circuit.
“[T]he mandate rule is a rule of policy and practice, not a jurisdictional limitation.”
Moore, 83 F.3d at 1234.

-5-
95-3045 (10th Cir. May 20, 1996). The opinion itself concluded with the

following statement:

Mr. Hicks’s conviction for using or carrying a firearm in relation to a
drug trafficking crime is REVERSED, his sentence for that offense is
VACATED, and the case is REMANDED for a new trial on that
offense. The convictions and sentences are AFFIRMED in all other
respects.

Miller , 84 F.3d at 1263.

Hicks argues that the language of our opinion specifically limited the

district court’s power so that the district court, upon remand, did not have the

authority to adjust his sentence on the remaining charges once we vacated the

section 924(c)(1) conviction. We disagree. Although we did remand for the

purpose of a new trial, nothing in the quoted language indicates that we intended

to limit the district court’s ability to resentence the defendant on the remaining

counts should the government choose not to pursue the new trial. Our failure to

specifically address the possibility that the government would not retry the

defendant does not mean that the district court was powerless to adjust the

defendant’s sentence. “The fact that the Tenth Circuit’s opinion and mandate[]

did not set forth with specificity all of the possible permutations that might

conceivably occur following remand is not an indication that enhancement is

unequivocally barred by the scope of the mandate.” United States v. Van Pelt,

938 F. Supp. 697, 706 (D. Kan. 1996), aff’d, 131 F.3d 153 (10th Cir. 1997)

-6-
(unpublished table decision), cert. denied, __ S. Ct. __, 1998 WL 99419 (Mar. 30,

1998). As we stated in Moore , “a district court, following the appellate vacation

of a sentence, possesses the inherent discretionary power to expand the scope of

the resentencing beyond the issue that resulted in the reversal and vacation of

sentence.” Moore , 83 F.3d at 1235.

Our opinion in United States v. Webb , 98 F.3d 585 (10th Cir. 1996), cert.

denied , 117 S. Ct. 1097 (1997), demonstrates the specificity that we require in

order to limit a district court’s authority to resentence on remand. In that case,

we held that after this court had directed the district court to impose a sentence

within the range of 27-33 months, “the mandate rule prohibited the district court

from departing downward from the guideline range enunciated.” Id. at 587. The

mandate in Hicks’s case lacks this type of specific direction. Because we did not

specifically limit the scope of the remand with regard to sentencing, the district

court was able to exercise its discretion to expand the resentencing beyond simply

vacating the sentence for the section 924 charge. See Moore , 83 F.3d at 1235.

Our holding here follows our recent decision in United States v. Smith , 116

F.3d 857 (10th Cir.), cert. denied , 118 S. Ct. 256 (1997). Like the defendant here,

Smith successfully argued on direct appeal that his section 924 conviction should

be vacated in light of Bailey . We agreed and set aside the conviction and

sentence for that charge, but, as in this case, did not make any reference to

-7-
resentencing on the remaining drug conviction. Upon remand, the district court

resentenced Smith on his drug conviction, applying the two-level enhancement

under U.S.S.G. § 2D1.1(b)(1). Smith then appealed, asserting that the

resentencing violated the mandate rule because the order to set aside the section

924 conviction precluded the court from reconsidering the sentence for the drug

count. We rejected that argument, stating that “[o]nce the sentence on the

firearms charge is ‘set aside’ the district court is no longer prohibited from

considering appropriate enhancements on the remaining drug count.” Id. at 859.

Although the mandate in Hicks’s case varies slightly from the mandate in

Smith, we do not find the difference significant. In Smith, we remanded with the

following instructions: “[W]e REVERSE Smith’s conviction under 18 U.S.C.

§ 924(c)(1) . . . and REMAND with directions that the conviction and sentence

thereon be set aside.” United States v. Smith, 82 F.3d 1564, 1568 (10th Cir.

1996). In Hicks’s case we not only reversed his section 924 conviction and

vacated his sentence for that offense, but we also stated that his “convictions and

sentences are AFFIRMED in all other respects.” Miller, 84 F.3d at 1263.

However, our affirmance of the other convictions and sentences did not limit the

district court’s authority to revisit those sentences after we vacated the section

924 conviction. “The fact that [we] ‘affirmed’ the defendant[’s] drug trafficking

offenses was nothing more than a rejection of the defendant’s attacks on those

-8-
sentences.” Van Pelt, 938 F. Supp. at 705.

It is true that in at least one of our “ Bailey -fix” cases, we specifically

instructed the district court to resentence the defendant under U.S.S.G.

§ 2D1.1(b)(1) on the remaining drug count. See United States v. Lang , 81 F.3d

955, 963-64 (10th Cir. 1996). However, our holdings here and in Smith

demonstrate that the type of specific instruction that we issued in Lang is not a

prerequisite to the district court’s authority to resentence. Our silence on the

issue of enhancement on remand should not be construed as “a tacit prohibition to

such action.” Van Pelt , 938 F. Supp. at 705; see also United States v. Shue , 825

F.2d 1111, 1114 (7th Cir. 1987) (“[D]espite the previous panel’s failure to vacate

explicitly the sentencing package and remand for resentencing, we hold that the

district court had the authority to . . . resentence the defendant to effectuate the

original sentencing intent.”). In short, after we vacate a count of conviction that

is part of a multi-count indictment, a district court “possesses the inherent

discretionary power” to resentence a defendant on the remaining counts de novo

unless we impose specific limits on the court’s authority to resentence. Moore ,

83 F.3d at 1235. Simple commands such as “vacate,” “set aside,” and “affirm”

are not sufficiently specific to limit that power.

Our holding today comports with cases in this Circuit and others applying

the “sentencing package” doctrine to cases involving resentencing after a direct

-9-
appeal. 5 This doctrine generally permits the district court to resentence a

defendant on convictions that remain after he succeeds in getting one or more

convictions vacated—even if he did not challenge the convictions on which he is

resentenced. See , e.g. , United States v. Smith , 116 F.3d 857, 859, cert. denied

118 S. Ct. 256 (1997); United States v. Diaz , 834 F.2d 287, 290 (2d Cir. 1987);

Shue , 825 F.2d at 1114; United States v. Pimienta-Redondo , 874 F.2d 9, 14 (1st

Cir. 1989). The Seventh Circuit has described the basis for this doctrine in oft-

quoted language:

When a defendant is convicted of more than one count of a
multicount indictment, the district court is likely to fashion a
sentencing package in which sentences on individual counts are
interdependent. When, on appeal, one or more counts of multicount
conviction are reversed and one or more counts are affirmed, the
result is an “unbundled” sentencing package. Because the sentences
are interdependent, the reversal of convictions underlying some, but
not all, of the sentence renders the sentencing package ineffective in
carrying out the district court’s sentencing intent as to any one of the
sentences on the affirmed convictions.
Thus, . . . [upon remand] the district court ha[s] the authority
to reevaluate the sentencing package . . . and resentence the

5
Although we are concerned here with resentencing following vacation of a
section 924 conviction on direct appeal, the circuit courts also have applied the sentencing
package doctrine to justify resentencing after a successful collateral attack under 18
U.S.C. § 2255. See, e.g., United States v. Davis, 112 F.3d 118, 122 (3d Cir.), cert.
denied, 118 S. Ct. 224 (1997); United States v. Smith, 103 F.3d 531, 533-35 (7th Cir.
1996), cert. denied, 117 S. Ct. 1861 (1997); United States v. Handa, 122 F.3d 690, 692
(9th Cir. 1997), cert. denied, 118 S. Ct. 869 (1998). Courts also have relied on the closely
related theory of “interdependence” of sentences. See, e.g., United States v. Mendoza,
118 F.3d 707, 710 (10th Cir.), cert. denied, 118 S. Ct. 393 (1997); Davis, 112 F.3d at 121;
United States v. Mixon, 115 F.3d 900, 903 (11th Cir. 1997).

- 10 -
 defendant to effectuate the original sentencing intent.

Shue , 825 F.2d at 1114 (citations omitted); see also United States v. Binford , 108

F.3d 723, 728 (7th Cir.) (applying sentencing package principles to uphold

resentencing after defendant’s successful section 2255 attack on his section 924

conviction), cert. denied , 117 S. Ct. 2530 (1997). Other circuits similarly have

emphasized the importance of allowing district courts to resentence in order to

carry out the original sentencing intent, recognizing that resentencing on

remaining convictions after vacation of one count may be “‘necessary in order to

ensure that the punishment still fits both crime and criminal.’” United States v.

Davis , 112 F.3d 118, 122 (3d Cir.) (quoting Pimienta-Redondo , 874 F.2d at 14),

cert. denied , 118 S. Ct. 224 (1997); see also United States v. Diaz , 834 F.2d 287,

290 (2d Cir. 1987). Courts are particularly aware of the need for resentencing in

the context of appeals involving the mandatory consecutive five-year sentence

imposed under 18 U.S.C. § 924(c)(1) because “vacating that portion of the

sentence radically changes the sentencing package.” United States v. Smith , 103

F.3d 531, 534 (7th Cir. 1996), cert. denied , 117 S. Ct. 1861 (1997); see also

United States v. Mixon , 115 F.3d 900, 903 (11th Cir. 1997); United States v.

Smith , 115 F.3d 241, 245 (4th Cir.), cert. denied , 118 S. Ct. 315 (1997).

In Smith , we touched upon the relationship between the mandate rule and

the sentencing package doctrine, noting that the package doctrine allowed the

- 11 -
district court to resentence a defendant after vacation of part of the package,

unless the mandate proscribed the lower court’s authority to do so:

A sentence under the U.S. Sentencing Guidelines constitutes a
sentencing package which takes into account all counts upon which
the defendant has been convicted. When one of those counts is set
aside or vacated, the district court is free to reconsider the sentencing
package de novo unless the appellate court specifically limited the
district court’s discretion on remand. The provisions of the U.S.
Sentencing Guidelines operate interdependently. Precluding the
district court from reconsidering the entire sentencing package after
one count of conviction is vacated would be inconsistent with the
purposes and structure of the U.S. Sentencing Guidelines.

Smith , 116 F.3d at 859 (citations omitted) (emphasis added).

The federal sentencing statute requires the sentencing court to take into

consideration, among other things, “the nature and circumstances of the offense”

and the need for the sentence imposed “to reflect the seriousness of the offense . .

. and to provide just punishment for the offense.” 18 U.S.C. § 3553(a). The

purposes of the federal sentencing scheme would be frustrated here if the district

court could not resentence the defendant using the section 2D1.1(b)(1)

enhancement because he would go unpunished for using a weapon during

commission of the drug offense. Neither Congress nor the Sentencing

Commission intended such conduct to go unpunished. See 18 U.S.C. § 924(c)(1)

(imposing mandatory 5-year sentence for using or carrying weapon during drug

offense); U.S.S.G. §§ 2D1.1(b)(1), 2K2.4 commentary (background) (requiring

court to apply 2-level enhancement for possessing weapon during drug offense,

- 12 -
except when defendant is already sentenced under section 924(c)(1)). A

resentencing that applies the section 2D1.1(b)(1) enhancement after vacation of a

section 924(c)(1) conviction and sentence “does nothing more than put defendants

in the same position they would have occupied had they not been convicted under

§ 924(c) in the first place.” United States v. Gordils , 117 F.3d 99, 103 (2d Cir.)

(upholding resentencing after defendants’ successful section 2255 challenge to

their section 924(c)(1) convictions), cert. denied , 118 S. Ct. 430 (1997). Hicks

would have us place him in a better position by allowing him to escape the

consequences of using the weapon in the commission of the offense. This we

refuse to do. “Thus, despite the previous [appellate] panel’s failure to vacate

explicitly the sentencing package and remand for resentencing, we hold that the

district court had the authority to reevaluate the sentencing package in light of the

changed circumstances and resentence the defendant to effectuate the original

sentencing intent.” Shue , 825 F.2d at 1114.

CONCLUSION

We AFFIRM the district court’s decision to resentence Hicks on the

remaining counts and to apply a two-level enhancement under U.S.S.G.

§ 2D1.1(b)(1) following this court’s vacation of his section 924(c)(1) conviction.

- 13 -
No. 96-3288, United States of America v. Michael Ray Hicks

McKAY, Circuit Judge, dissenting:

I must respectfully dissent. Today’s decision represents a lack of respect

for the finality of judgments and is contrary to our reasoning and jurisprudence on

that issue. I find no authority in the Constitution, laws, sentencing guidelines, or

Rules of Criminal Procedure for the court to ignore our long and well-settled law

of finality of judgments in order to facilitate a judicially-created fiction of

“bundling.”

The judgment of the Court of Appeals in this case reads: “Mr. Hicks’s

conviction for using or carrying a firearm in relation to a drug trafficking crime is

REVERSED, his sentence for that offense is VACATED, and the case is

REMANDED for a new trial on that offense. The convictions and sentences are

AFFIRMED in all other respects.” United States v. Miller , 84 F.3d 1244, 1263

(10th Cir.), cert. denied , ___ U.S. ___, 117 S. Ct. 443 (1996), overruled by United

States v. Holland , 116 F.3d 1353 (10th Cir.), cert. denied , ___ U.S. ___, 118 S.

Ct. 253 (1997). The mandate directed the trial court to take further proceedings

in accordance with that judgment. See Judgment, United States v. Hicks , No. 95-

3045 (10th Cir. May 20, 1996). There is nothing ambiguous about that judgment.

Unless reviewed on certiorari by the Supreme Court or on a timely-filed motion
for reconsideration, the above-quoted language was, and remains, a final

judgment.

Contrary to the majority opinion, see ante , at 8, I find a significant

difference between the mandate in United States v. Smith , 82 F.3d 1564, 1568

(10th Cir. 1996), and the mandate in this case. In Smith , the mandate set aside

the firearm conviction and sentence but did not mention the remaining drug

conviction. See id. With our statement in this case that Defendant’s “convictions

and sentences are AFFIRMED in all other respects,” we clearly and unmistakably

affirmed the final judgment on all the counts except the firearm count. Miller , 84

F.3d at 1263. We emphasized that fact by stating that both the convictions and

sentences were affirmed “in all other respects.” Id. We did not say “in most

other respects” or “unless the government or the trial court wants to change those

judgments.” Nor were we silent about the scope of remand, as the majority

opinion maintains. See ante , at 9. The instruction regarding the other convictions

and sentences was direct and specific. “AFFIRMED in all other respects” meant

that those convictions and sentences were final and should stand as rendered by

the district court before we reviewed them. Miller , 84 F.3d at 1263. The distinct

treatment of, and language relating to, the firearm count versus the other counts

further reinforces the finality of the judgment. Our final determination upon

appeal was that we concurred in the correctness of those convictions and

-2-
sentences. This is not a case “where the appellate court has not specifically

limited the scope of the remand,” allowing the district court “discretion to expand

the resentencing beyond the sentencing error causing the reversal.” United States

v. Moore , 83 F.3d 1231, 1234 (10th Cir. 1996).

The majority holds that

after we vacate a count of conviction that is part of a multi-count
indictment, a district court “possesses the inherent discretionary
power” to resentence a defendant on the remaining counts de novo
unless we impose specific limits on the court’s authority to
resentence. Moore , 83 F.3d at 1235. Simple commands such as
“vacate,” “set aside,” and “affirm” are not sufficiently specific to
limit that power.

Ante , at 9. The majority is saying that we did not enter a final judgment as to the

convictions and sentences that we “AFFIRMED in all other respects,” Miller , 84

F.3d at 1263, on direct appeal and to which we denied a petition for rehearing.

See id. at 1244. To highlight the flaws in this holding, consider this scenario. On

remand, immediately after the 18 U.S.C. § 924 conviction and sentence were

reversed and vacated, the trial judge dies. The case is reassigned to a judge well

known for exercising her discretion at the bottom of the range in similar cases.

Does the court really mean to suggest that the defendant can ask the trial judge to

find the enhancement inappropriate, exercise her discretion and reduce the

sentences to the bottom of the range, or reconsider whether the government has

sustained its burden on all the sentencing factors? Such is the inevitable force of

-3-
the majority’s decision, unless the court is saying, without any authority to

suggest that judgments are less binding on the government than on defendants,

that our judgment was final as to the defendant, but not as to the government.

There is sound reason for the body of law concerning the finality of

judgments. As the Supreme Court explained, “‘Inroads on the concept of finality

tend to undermine confidence in the integrity of our procedures’ and inevitably

delay and impair the orderly administration of justice.” Custis v. United States ,

511 U.S. 485, 497 (1994) (quoting United States v. Addonizio , 442 U.S. 178, 184

n.11 (1979)). There is no compelling reason to undermine the concept of finality

as the majority’s decision does in favor of the fiction called “bundling” and in

order to stack on some additional prison time for a man who will be incarcerated

for the better part of 15 years.

I would reverse and remand with directions to vacate this new and

enhanced sentence, and reinstate the sentence previously entered and made final

on appeal by this court’s judgment.

-4-