United States v. McCoy, JoAnn

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 16, 2001 Decided February 22, 2002

No. 01-3052

United States of America,
Appellee

v.

JoAnn McCoy,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 98cr00082-01)

Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for the appellant. A. J. Kramer, Federal Public
Defender, was on brief.

Suzanne Grealy Curt, Assistant United States Attorney,
argued the cause for the appellee. Kenneth L. Wainstein,
Acting United States Attorney at the time the brief was filed,

and John R. Fisher and Roy W. McLeese, III, Assistant
United States Attorneys, were on brief.

Before: Ginsburg, Chief Judge, Henderson, Circuit Judge,
and Williams, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge Henderson.

Opinion concurring in part and dissenting in part filed by
Senior Circuit Judge Williams.

Karen LeCraft Henderson, Circuit Judge: The appellant,
JoAnn McCoy, appeals the district court's May 9, 2001 judg-
ment resentencing her to a 33-month prison term and order-
ing her to pay $542,781.89 in restitution and a $150 special
assessment. She offers two challenges to the district court's
judgment.

First, McCoy argues that the district court erred in refus-
ing to consider a legal issue made "newly relevant" by this
court's remand for resentencing in United States v. McCoy,
242 F.3d 399 (D.C. Cir.) (McCoy I), cert. denied, 122 S. Ct.
166 (2001). Second, she challenges the $542,781.89 restitution
figure, contending that the district court erred in refusing to
reconsider that amount in light of her "current ability to pay."
Her contentions are without merit and we therefore affirm
the district court's May 9 resentencing judgment in both
respects.

I.

On September 22, 1998 a jury found McCoy guilty of
violating: 18 U.S.C. s 1014, by making false statements in a
loan application to a bank (Count One); 15 U.S.C. s 645, by
making the same false statements to the Small Business
Administration (Count Two); and 18 U.S.C. s 1623, by per-
juring herself in a bankruptcy proceeding and in her subse-
quent criminal trial (Count Three).1

On June 3, 1999 the district court imposed prison terms of
37 months each on Counts One and Three and 24 months on

__________
1 For a complete account of McCoy's conduct supporting the
verdict against her, see McCoy I, 242 F.3d at 401-02.

Count Two, all to be served concurrently. The court also
ordered McCoy to pay $542,781.89 in restitution--at the rate
of $300 per month upon her release from incarceration--and
imposed a $150 special assessment.

McCoy appealed to this court, arguing that there was
insufficient evidence to support her perjury conviction,
McCoy I, 242 F.3d at 402-03, and disputing the district
court's application of the United States Sentencing Guidelines
(U.S.S.G. or Guidelines) "which collectively increased her
offense level from 6 to 21, thereby substantially increasing
her range of imprisonment." Id. at 403. McCoy asserted
that the district court erroneously imposed: (i) an eight-point
increase in the offense level of her false statement offenses
(Counts One and Two), pursuant to U.S.S.G. s 2F1.1(b)(1),
for causing a loss of $200,000 to $350,000; (ii) a two-point
increase, pursuant to section 2F1.1(b)(2), for "more than
minimal planning" of her false statement offenses; (iii) a two-
point increase in her false statement offenses level, pursuant
to section 3C1.1, for "willfully obstruct[ing] or imped[ing] ...
the administration of justice"; (iv) a one-point increase in her
"combined offense level," pursuant to section 3D1.2, because
her perjury offense (Count Three) was not grouped with her
two false statement offenses; and (v) a two-point increase in
her false statement offenses level, pursuant to section
3B1.1(c), for her role as an "organizer, leader, manager, or
supervisor in [a] criminal activity." See McCoy I, 242 F.3d at
403. Although the district court had applied the same two-
point obstruction-of-justice adjustment to McCoy's perjury
offense level as it had to her false statement offenses level,
she challenged only the two-point addition to her false state-
ment offenses level. And at no time did she challenge the
district court's order that she pay $542,781.89 in restitution.

On appeal, we found "no ground for McCoy's challenge to
her perjury conviction," McCoy I, 242 F.3d at 403, and we
rejected all of McCoy's sentencing challenges save one--her
contention that the district court improperly imposed a two-
point "managerial role" adjustment under section 3B1.1(c).
Id. at 410; see also id. at 404-10. McCoy had argued that
her employees were "unwitting participants" in her criminal

acts and therefore she could not have been the "organizer,
leader, manager, or supervisor" in a "criminal activity." See
id. at 410. We agreed, holding that "supervision of an
unwitting individual cannot justify an enhancement under
U.S.S.G. s 3B1.1(c)." Id. Accordingly, we remanded for
resentencing "with instructions to resolve the ambiguities" we
had discovered "in the [district] court's application of U.S.S.G.
s 3B1.1." Id. (citing 18 U.S.C. s 3742(f)(1) (mandating re-
mand if sentence imposed results from incorrect application
of Guidelines)).

On remand, the Probation Office revised the Presentence
Report, eliminating the two-point upward adjustment for
McCoy's managerial role in the offense. Updated Presen-
tence Report at 3. The change brought her combined offense
level down from 21 to 20--not from 21 to 19, as the arithmetic
might ordinarily produce. In McCoy's case, the Guidelines
impose a one-point upward "multi-group adjustment" if the
difference between her two offense levels is five to eight
points and a two-point multi-group adjustment if the differ-
ence is less--i.e., zero to four points.2 Compare Presentence
Report at 11 with Updated Presentence Report at 4. Under
section 3D1.4, McCoy's multi-group adjustment (be it one or
two) must be added to the higher of her two offense levels to
produce her "combined offense level." At sentencing,

__________
2 In the introduction to Chapter 3, Part D, the Guidelines explain
why a higher adjustment is warranted where a difference in offense
levels is lower, and vice-versa:

The rules in this Part seek to provide incremental punishment
for significant additional criminal conduct. The most serious
offense is used as a starting point. The other counts determine
how much to increase the offense level. The amount of the
additional punishment declines as the number of additional
offenses increases.

U.S.S.G. Manual, ch. 3, pt. D, introductory cmt. (2001); see United
States v. Valentine, 100 F.3d 1209, 1212 (6th Cir. 1996) (noting that
the "principle of declining marginal punishment has been clearly
enunciated in the introduction to Chapter 3 of the Guidelines and is
implicit in the structure of s 3D1.4, among other provisions").

McCoy's false statement offenses level was 20 and her perju-
ry offense level was 14. See Presentence Report at 10-11.
Thus, the difference was six and section 3D1.4 called for a
one-point multi-group adjustment. Adding one point to the
higher level of the two resulted in a combined offense level of
21.3 See id. at 11. On remand, however, her false statement
offenses level dropped to 18 because the two-point managerial
role adjustment was eliminated. Updated Presentence Re-
port at 3-4. Her perjury level remained at 14. See id. at 4.
Thus, the difference between the two offense levels was
reduced to four and section 3D1.4 called for a two-point multi-
group adjustment. Adding two points to the higher level of
the two resulted in a combined offense level of 20.4 See id.

At the outset of the resentencing proceeding, the district
court correctly stated that in McCoy I we had remanded the
case "for resentencing without the two-level enhancement
that was improperly accorded to [McCoy's] sentence....
Thus, the only issue presently before [the district court] is the
adjustment of [McCoy's] sentence in accordance with the
mandate issued by the Court of Appeals." App. of Appellee,
Tab H, at 2 (Resentencing Tr.). The court declined to
consider any issue other than elimination of the two-point
managerial role adjustment because in McCoy I we "stated
very clearly what issue [the district court] should address on
remand." Id. at 4.

Nonetheless, McCoy argued that her perjury offense level
should be 12 rather than 14 because, at her original sentenc-
ing, the district court erroneously added a two-point obstruc-
tion-of-justice adjustment to that level under section 3C1.1.
She therefore insisted that the multi-group differential re-

__________
3 For McCoy--who is in "Criminal History Category I"--a com-
bined offense level of 21 carries a sentencing range of 37-46
months' imprisonment. See U.S.S.G. Manual ch. 5, pt. A (2001). It
bears repeating here that the district court originally sentenced
McCoy to the 37-month minimum.

4 For McCoy, a combined offense level of 20 carries a sentencing
range of 33-41 months' imprisonment. See U.S.S.G. Manual ch. 5,
pt. A (2001).

main at six (18 minus 12) and that her combined offense level
become 19 (18 plus one) instead of 20 (18 plus two).5 She also
protested that "[t]he McCoy family's current financial situa-
tion does not leave them any hope of paying a half-million
dollar restitution obligation." App. of Appellant at 26. In
place of the original $542,781.89 restitution order--which
itself mandated payment at a rate of $300 per month--she
argued that payment at a rate of $300 per month for 10-20
years (for a total of $36,000 to $72,000) "would be more
faithful to the statutory considerations and give [her] hope of
someday fully meeting her obligation." Id. at 27.

The district court resentenced McCoy on May 9, 2001 to
concurrent prison terms of 33 months each on Counts One
and Three and 24 months on Count Two, all to be served
concurrently. The court reassessed the same amount in
restitution, $542,781.89, and it reimposed the same $150 spe-
cial assessment.

II.

McCoy raises two challenges to the district court's May 9,
2001 resentencing. In reviewing these challenges, we "accept
the findings of fact of the district court unless they are clearly
erroneous" and "give due deference to the district court's
application of the [G]uidelines to the facts." 18 U.S.C.
s 3742(e); see also McCoy I, 242 F.3d at 403-04. We review
issues of law de novo. See McCoy I, 242 F.3d at 404; United
States v. Drew, 200 F.3d 871, 876 (D.C. Cir. 2000).

First, citing our decision in United States v. Whren, 111
F.3d 956 (D.C. Cir. 1997), cert. denied, 522 U.S. 1119 (1998),
McCoy contends that the district court erred at resentencing
by refusing to consider the "newly relevant" issue of whether,
at her original sentencing, the two-point obstruction-of-
justice upward adjustment was erroneously added to her
perjury offense level under section 3C1.1. Further, she

__________
5 A 19-point combined offense level, as McCoy pointed out, would
carry a sentencing range of 30-37 months' imprisonment. See App.
of Appellant at 25; see also U.S.S.G. ch. 5, pt. A (2001).

argues that the obstruction adjustment was erroneously add-
ed, claiming that the "repetition at her criminal trial of
precisely the same testimony she was convicted of giving at
her bankruptcy trial does not amount to the sort of 'signifi-
cant further obstruction' required to justify an obstruction
enhancement to a perjury conviction under Application Note
7" to section 3C1.1.6 Br. of Appellant at 13. Thus, she
argues that her perjury offense level should be reduced to 12,
that her multi-group adjustment should remain at one point
(the difference between 12 and 18 being six) and that her
combined offense level should be reduced to 19. For the
reasons discussed infra, we conclude that McCoy has waived
her right to challenge at resentencing the obstruction adjust-
ment to her perjury offense level.7

In Whren, we held that

upon a resentencing occasioned by a remand, unless the
court of appeals expressly directs otherwise, the district
court may consider only such new arguments or new
facts as are made newly relevant by the court of appeals'
decision--whether by the reasoning or by the result.

Whren, 111 F.3d at 960. We rejected the de novo approach
adopted by our sister courts in the Second, Sixth, Eighth,
Ninth and Tenth Circuits, under which a "district court may,
upon remand, take any evidence and hear any argument that
it could have considered in the original sentencing proceed-
ing." Id. at 959 (citing United States v. Moore, 83 F.3d 1231,
1235 (10th Cir. 1996); United States v. Jennings, 83 F.3d 145,
151 (6th Cir.), cert. denied, 519 U.S. 975 (1996); United States
v. Atehortva, 69 F.3d 679, 685 (2d Cir. 1995), cert. denied, 517
U.S. 1249 (1996); United States v. Ponce, 51 F.3d 820, 826

__________
6 Application Note 7 to section 3C1.1 provides that an obstruction
adjustment "is not to be applied to the offense level for [perjury]
except if a significant further obstruction occurred during the
investigation, prosecution, or sentencing of the obstruction itself."
U.S.S.G. Manual s 3C1.1, cmt. n.7 (2001).

7 Accordingly, we need not address the underlying merits of
McCoy's Application Note 7 argument.

(9th Cir. 1995); United States v. Cornelius, 968 F.2d 703, 705
(8th Cir. 1992)). We adopted instead a "waiver" approach,
under which "a defendant may argue at resentencing that the
court of appeals' decision has breathed life into a previously
dormant issue, but he may not revive in the second round an
issue he allowed to die in the first." Id. at 960; see also
United States v. Ticcharelli, 171 F.3d 24, 32 (1st Cir.) (adopt-
ing Whren approach), cert. denied, 528 U.S. 850 (1999);
United States v. Marmolejo, 139 F.3d 528, 530-31 (5th Cir.)
(same), cert. denied, 525 U.S. 1056 (1998); United States v.
Parker, 101 F.3d 527, 528 (7th Cir. 1996) (adopting waiver
approach similar to that of Whren). We found the waiver
approach preferable to de novo resentencing because:

De novo resentencing is in essence a license for the
parties to introduce issues, arguments, and evidence that
they should have introduced at the original sentencing
hearing. The alternative of requiring the parties to raise
all relevant issues at the original sentencing hearing
serves both equity and efficiency: Each party gets early
notice of the other's position, and the district court can
resolve all material issues early on--when the record is
fresh in mind--and in a single proceeding, thereby mini-
mizing the scope of any second proceeding, i.e., should
the first result in a remand.

Whren, 111 F.3d at 959-60.

McCoy claims that our remand in McCoy I set off a chain
reaction that has "breathed life into" the obstruction issue.
While McCoy can show the two-point upward adjustment to
be relevant,8 Whren's holding declares that whether the ob-
struction issue is newly relevant turns upon whether or not
McCoy had reason to challenge the adjustment at her origi-

__________
8 The remand did indeed reduce McCoy's false statement offenses
level from 20 to 18. Thus, her perjury offense level of 14 came
within four points, causing the multi-group adjustment to increase
from one to two. The increase in the multi-group adjustment, in
turn, raised the combined offense level from 19 to 20 and the
increase in the combined offense level raised her minimum sentence
from 30 months to 33 months.

nal sentencing. Whren, 111 F.3d at 960 ("A defendant
should not be held to have waived an issue if he did not have
a reason to raise it at his original sentencing; but neither
should a defendant be able to raise an issue for the first time
upon resentencing if he did have reason but failed nonethe-
less to raise it in the earlier proceeding."). McCoy argues
that she "had no reason to raise the obstruction issue until
this Court's decision led to an offense level correction that
suddenly rendered the obstruction issue material to her sen-
tence." Br. of Appellant at 17. At oral argument, she
iterated that the only relevant obstruction adjustment at her
original sentencing was the two-point addition to the "control-
ling" false statement offenses level. She is mistaken.

McCoy had ample reason in the first round of proceedings
to challenge the two-point obstruction addition to her "non-
controlling" perjury offense level. Her false statement of-
fenses level, before the first appeal and with the obstruction
adjustment (to which she objected at her original sentencing
and on appeal), was 20. See Presentence Report at 10-11.
Her perjury offense level, before the first appeal and with the
obstruction adjustment (to which she now objects for the first
time), was 14. See id. at 11. Contrary to McCoy's assertion,
the obstruction adjustment to the "non-controlling" perjury
offense level became "relevant" the very instant she chal-
lenged the obstruction addition to the false statement of-
fenses level. Had she persuaded the sentencing judge (as, we
presume, was her purpose), McCoy's "controlling" false state-
ment offenses level would have been reduced to 18, bringing
it within four points of her perjury offense level and increas-
ing the multi-group adjustment by one for a combined offense
level of 20. She had just as much incentive to keep the gap
at six then as she did at resentencing. In short, McCoy's
Application Note 7 argument does not fall within the "newly
relevant" exception to Whren's general bar against new argu-
ments at resentencing and it was therefore waived.

Second, McCoy contends that the district court erred in
refusing to reconsider the original $542,781.89 restitution
amount in light of her "current ability to pay." She correctly
observes that our decision in United States v. Rhodes, 145

F.3d 1375 (D.C. Cir. 1998), permits a resentencing court to
consider facts that were unavailable or non-existent at the
original sentencing. Rhodes, 145 F.3d at 1377-78 ("[C]onsid-
eration of post-initial sentencing events, in those rare circum-
stances in which such events may become relevant, neither
contravenes Whren's concern with ensuring that parties re-
ceive fair notice of their opponent's arguments at initial
sentencing nor undermines its goal that district courts 're-
solve all material issues ... when the record is fresh in
mind.' " (quoting Whren, 111 F.3d at 960) (emphasis added)).
She asserts that her current ability to pay restitution is such
a fact. Her assertion is without support.

The financial situation in which McCoy now finds herself is
utterly irrelevant to the restitution challenge she purports to
mount. The district court's original $542,781.89 restitution
order was to be paid at the rate of $300 per month. See App.
of Appellant at 17. McCoy did not argue at resentencing,
and does not argue now, that she cannot make the $300
monthly payments. Instead, she claims that "given the losses
the family [has] suffered as a result of her offense conduct"
and the "significant monthly deficit that [is] being made up
with help from [her] extended family," she will not realistical-
ly "be able to pay more than the $300 per month the [c]ourt
had ordered at the initial sentencing." Br. of Appellant at 22
(emphasis added). She acknowledges that she has simply
"requested that the restitution obligation be reduced to be-
tween $36,000 and $72,000-which could be paid off at the rate
of the $300 per month ordered by the court in 10 to 20 years."
Id. If McCoy can afford to pay $300 per month currently--a
fact she does not dispute--she has no relevant ground to
object to the reimposition of a restitution order mandating
payment at precisely that rate.

McCoy resists this conclusion, arguing that "by ordering
minimum payments of only $300 per month, the resentencing
court was implicitly recognizing that [she] did not have the
ability to pay more and that it was unlikely she would ever be
able to pay the full amount. (It would take 150 years to pay
the full amount at a rate of $300 per month)." Id. at 24. The
possibility that McCoy will not be able to pay the full

$542,781.89 balance during her lifetime is one that existed at
the time she was originally sentenced. In failing to protest
the restitution order at that time--and, subsequently, on
appeal in McCoy I--she waived the half-hearted objection she
now raises. We conclude, therefore, that the district court
properly declined to reconsider its original restitution order.

For the foregoing reasons, the district court's May 9, 2001
resentencing judgment is

Affirmed.

 Williams, Senior Circuit Judge, concurring in part and
dissenting in part: I agree with the panel's disposition of
McCoy's claim for reconsideration of the restitution element
of her sentence. I disagree, however, with its conclusion that
McCoy has waived her objection to the two-point obstruction
bump for the offense level on the perjury charge.

Sentencing nowadays proceeds under the United States
Sentencing Guidelines and involves complexities and contin-
gencies not unlike those of the Internal Revenue Code. Just
as under the IRC an increase in income at certain levels will
reduce the benefit of a taxpayer's deductions, see 26 U.S.C.
s 68 (reducing allowable deductions by 3% of the excess of
adjusted gross income over applicable statutory threshold);
see also id. s 151(d)(3) (reducing personal exemption amount
by 2% for every $2,500 in income over applicable statutory
threshold), so under the Guidelines a decrease in the "offense
level" for the higher-scored of two related crimes may end up
changing the effect of the lower-scored crime, and more
particularly, change the impact of the offense level assigned
to the lesser crime. As a result, an issue that at one point
appears purely hypothetical may move into prominence once
adjustment is made elsewhere in the calculation.

This of course is what happened to McCoy. See Maj. Op.
at 4-6. On her initial sentencing the district court found her
offense level for the false statement charge to be 20 and for
perjury 14. Because the difference of six (20 minus 14) fell
between five and eight points, under s 3C1.1's provision for a
"multi-group adjustment" the perjury charge caused a one-
point upward bump in her combined score, which the district
court accordingly set at 21. If McCoy had at that point
argued for a reduction of her perjury offense level from 14 to
12, as she now does, she would rightly have been told it was
immaterial; the multi-group adjustment is the same for an
eight-point differential as for a six-point differential, and the
perjury conviction's only impact on the combined offense level
was via that "adjustment."

On her first appeal we saw merit in her claim that the
district court had perhaps given her an improper two-point
bump for her managerial role in the false-statement offense.

Unsure as to the district court's understanding of the stan-
dard and as to its view of the facts, we remanded. United
States v. McCoy, 242 F.3d 399, 409-10 (D.C. Cir. 2001). On
remand, the district court in fact deleted the two-point "man-
agerial" bump. With the false statement charge falling to an
offense level of 18, the gap between it and the perjury score
fell to four (18 minus 14). Following s 3C1.1, the district
raised the multi-group adjustment to two points, now produc-
ing a combined score of 20. With the reduction in the false
statement offense level, the issue McCoy now raises became
material: reducing the perjury offense level from 14 to 12
would restore the gap to six points and thus take the multi-
group adjustment back down to one.

Accordingly, McCoy then put before the district court her
complaint that it had erroneously given her perjury charge a
two-point bump for "obstruction of justice." The district
court refused to entertain the claim because, in its view, the
only issue properly before it was the two-point "managerial"
bump in the false statement charge. Resentencing Hearing
Tr. at 13 (May 9, 2001). (Not exactly: it assumed that
modifying the multi-group adjustment was in order.) The
majority today holds that McCoy's argument against the
obstruction supplement in the perjury context is not "newly
relevant" and that McCoy waived it by failing to raise it
during the initial hearing and appeal. This seems to me both
an unsound reading of our decision in United States v.
Whren, 111 F.3d 956 (D.C. Cir. 1997), and likely to lead to
inefficient and needlessly complex sentencing challenges.

In Whren we held that

... upon a resentencing occasioned by a remand, unless
the court of appeals expressly directs otherwise, the
district court may consider only such new arguments or
new facts as are made newly relevant by the court of
appeals' decision--whether by the reasoning or by the
result.

Id. at 960 (emphasis added). We also said, "A defendant
should not be held to have waived an issue if he did not have
a reason to raise it at his original sentencing." Id.

 The present case exposes an ambiguity in Whren. As I
understand the majority, an initial appeal renders an issue
"newly relevant" if but only if the decision opens up an issue
that previously could not have been even potentially relevant.
Apart from issues injected by the court of appeals on its own
hook, and presumptively from out of left field (which we're
generally not supposed to do), I'm not sure what issues could
fall into this group--apart, obviously, from any "newly rele-
vant" issues that the court of appeals explicitly tells the
district court to consider on remand.

The more natural reading, I think, would be that an issue is
"newly relevant" if it will, entirely as a result of changes
resulting from the first appeal, for the first time have an
actual impact on the sentence. The only circuit court to
adopt or even seriously consider Whren, the First Circuit in
United States v. Ticchiarelli, 171 F.3d 24, 32-33 (1st Cir.
1999), so understands it. In the initial sentencing there, the
district court had fitted a large weight of "hashish oil" into
the guidelines system by treating each kilo of hashish oil as
the equivalent of 50 kilos of marijuana. The court of appeals
reversed, saying that the oil must be treated as equal to
marijuana. On remand, the defendant then raised an issue
about computation of the weight of the drugs' containers, an
issue that had been--because of the numbers in question--
irrelevant under the district court's initial (erroneous) treat-
ment of hashish oil. The district court refused to hear the
claim, treating its omission from the first appeal as a waiver.
The court of appeals rejected the waiver theory, quoting
Whren at some length and reading it to allow the defendant
to raise his "container" issue in the second appeal, because he
had not had "sufficient incentive to raise the issue in the prior
proceedings." Id. at 33. Of course in this circuit, under the
panel's view, fear of this court's waiver doctrine would supply
an incentive, but the First Circuit plainly saw incentive as
depending on whether the issue could change the sentence
under the view taken by the district court on the other issues.
As no change was possible under those views, there was no
waiver. This strikes me as the sound and natural reading of
Whren.

 Besides draining the Whren exception of virtually all mean-
ing, the panel view here imposes an undue burden on counsel
and will ultimately increase the burdens on the court. The
impact on defense counsel is plain. Counsel must, in the
initial appeal (and therefore, of course, at the initial district
court sentencing), consider every step of the presentence
report's reasoning, to determine whether any such step might
not conceivably have an adverse effect down the road if the
defendant won on any of its proposed changes--no matter
how immaterial the step may be on the view actually taken by
the report. And, of course, he or she must articulate and
argue these seemingly moot issues before the district court
and the court of appeals.

The court may suppose that the resulting burden will fall
only on counsel (though I do not know why a court should
disregard a waste of others' resources). But even from a
narrowly judicial perspective, the rule will generate needless
complexity, causing briefs to be cluttered with second-order
issues that are hypothetical and in many instances ultimately
irrelevant (in fact, as we shall see below, in most instances).
Cf. Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 740
(D.C. Cir. 1995) (holding that appellees should not be forced
"to put forth every conceivable alternative ground for affir-
mance," and expressing serious concerns about increasing
"complexity and [the] scope of appeals"); cf. also Field v.
Mans, 157 F.3d 35, 41-42 (1st Cir. 1988); Exxon Chemical
Patents, Inc. v. Lubrizol Corp., 137 F.3d 1475, 1478-79, 1482
(Fed. Cir. 1998); Laitram Corp. v. NEC Corp., 115 F.3d 947,
954 (Fed. Cir. 1997). It might be consoling to think that
counsel will provide the court with a handy roadmap: for
example, "If the court agrees with point 2, then points 3 and 4
are irrelevant, and the court should proceed directly to point
5." Nothing in my experience on the bench supports the
notion that counsel will do so; rarely if ever do counsel even
bother to say, for example, "For reversal, appellant must
prevail on both arguments I and II."

While a number of circuits have adopted a rule of de novo
resentencing, see, e.g., United States v. Jennings, 83 F.3d
145, 151 (6th Cir. 1996); United States v. Atehortva, 69 F.3d

679, 685 (2d Cir. 1995); United States v. Cornelius, 968 F.2d
703, 705 (8th Cir. 1992), there is good reason not to go so far.
We said in Whren that such a rule "is in essence a license for
the parties to introduce issues ... that they should have
introduced at the original sentencing hearing." 111 F.3d at
959. Quite true. A better solution is to give Whren its most
obvious reading, as the First Circuit did in Ticchiarelli: allow
counsel to defer any second-order issue, i.e., any issue that
can come into play only if the defendant should secure victory
on a first-order issue. See also United States v. Parker, 101
F.3d 527, 528 (7th Cir. 1996) ("Only an issue arising out of the
correction of the sentence ordered by this court [can] be
raised in a subsequent appeal.").

Reversal rates may influence one's choice among the alter-
native readings of Whren. Multiple appeals from a single
case cost judicial (and lawyers') resources, but increments in
the complexity of single appeals also cost resources. If
district courts are seldom reversed, the broad (First Circuit)
reading of Whren makes sense. After all, if a litigant only
has a 10% chance of reversal on the first-order issue, there is
little reason to burden courts with second-order issues that
will become relevant only 10% of the time. In contrast, if
district courts are frequently reversed on first-order issues,
then there is more to be said for the narrow reading of
Whren, as the frequency of second-order issues becoming
relevant will concomitantly increase.

In fact it appears that reversal rates are low. According to
statistics kept by the Administrative Office for the United
States Courts, the reversal rate in this circuit is 12.9%
generally, and 12.1% in criminal cases. For all circuits
combined, the reversal rate is 9.5% generally, and only 6.3%
in criminal cases. See Judicial Business of the US Courts
102 tbl. B-5 (2000) (reporting rates for appeals terminated on
the merits for the 12-month period ending September 2000).1

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1 The reversal rates reported here are those shown in the Admin-
istrative Office's report. The statistics may be somewhat imprecise
for purposes of this analysis because cases need not be affirmed or
reversed, but can be disposed of in other ways. Nonetheless,

Reversal rates for sentencing issues, of course, may be high-
er, but given the frequency of sentencing issues, a high
reversal rate on such issues would be reflected in high
average rates. Thus the data tend to support the broader
reading of Whren--allowing a defendant to raise on his or her
second appeal issues that were entirely hypothetical on the
first round.

I respectfully dissent from the court's disposition of
McCoy's perjury charge claim. As the majority finds that
claim waived, I do not reach the merits of the issue. Cf.
Daingerfield Island Protective Society v. Babbitt, 40 F.3d
442, 448 (D.C. Cir. 1994) (Wald, J., dissenting in part); cf.
also Boggs v. Rubin, 161 F.3d 37, 44 (D.C. Cir. 1999) (Rogers,
J., concurring in part and dissenting in part).

__________
recalculating the rates to consider only cases that were either
affirmed or reversed yields similar numbers: for this circuit, 13.2%
generally and 14.6% in criminal cases; for all circuits, 9.9% general-
ly and 7.1% in criminal cases. Statistics for earlier years yield
similar results. See Judicial Business of the US Courts 108 tbl.
B-15 (1999); Judicial Business of the US Courts 114 tbl. B-5
(1998).