United States Court of Appeals
For the First Circuit
No. 05-1402
UNITED STATES OF AMERICA,
Appellee,
v.
OMAR GENAO-SÁNCHEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Circuit Judge.
Selya, Senior Circuit Judge,
and Lynch, Circuit Judge.
Lydia Lizarribar-Masini on brief for appellant.
Omar Genao-Sánchez, pro se, on supplemental brief for
appellant.
Nelson Pérez-Sosa, Assistant United States Attorney
(Chief, Appellate Division), and Rosa Emilia Rodríguez-Veléz,
United States Attorney, on brief for appellee.
May 7, 2008
SELYA, Senior Circuit Judge. Defendant-appellant Omar
Genao-Sánchez (Genao) challenges the district court's refusal to
conduct a sentencing hearing after vacation of some, but not all,
of the original counts of conviction. See United States v.
Rodríguez-Marrero, 390 F.3d 1, 32 (1st Cir. 2004).1 He contends,
among other things, that the failure to resentence him contravened
this court's mandate. Concluding, as we do, that the lower court
erred, we remand for resentencing.
We rehearse here only those facts necessary to place this
appeal into perspective. The reader who hungers for more exegetic
detail may consult our earlier opinion. See id. at 5-11.
On December 17, 1997, a federal grand jury charged the
appellant with conspiracy to possess more than five kilograms of
cocaine and other drugs with intent to distribute, in violation of
21 U.S.C. §§ 846 and 841(a)(1). The grand jury twice superseded
the indictment. Pertinently, in July 2000 it handed up a second
superseding indictment that charged the appellant with two
additional crimes: conspiring to use a firearm in furtherance of
the aforementioned drug conspiracy, death resulting, in violation
of 18 U.S.C. § 924(o), and aiding and abetting the commission of
that crime, in violation of 18 U.S.C. §§ 2 and 924(j). For
simplicity's sake, we shall refer to these counts sequentially as
1
Rodríguez-Marrero was one of two codefendants tried with the
appellant. Neither of those codefendants is a party to this
appeal.
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count one (the drug conspiracy count), count two (the firearms
count), and count three (the aiding and abetting count). After a
protracted trial, a jury pronounced the appellant guilty on all
three counts.
The district court convened a disposition hearing on
March 18, 2002. Working under the then-mandatory sentencing
guidelines, the court grouped the three counts of conviction. See
USSG §3D1.2 (authorizing grouping, for sentencing purposes, of
counts that involve the same harm). The sentencing guidelines
directed the court to use the offense level for the most serious of
the grouped counts in fixing the base offense level (BOL). See id.
Because counts two and three involved the death of a person, those
counts triggered a BOL of 43. See id. §2A1.1. Using that BOL for
the grouped counts, the court sentenced the appellant to life
imprisonment on each count of conviction. The court ran the
sentences concurrently.
On direct review, we vacated the appellant's convictions
on counts two and three due to errors in the admission of evidence.
See Rodríguez-Marrero, 390 F.3d at 15-21. At the same time, we
affirmed the appellant's conviction on count one. Id. at 21. We
concluded:
For the foregoing reasons, we VACATE Genao's
convictions on counts two and three of the
second superseding indictment and REMAND to
the district court for a new trial on those
charges if the government wishes to so
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proceed, and for resentencing. We AFFIRM
Genao's conviction on count one . . . .
Id. at 32.
Following remand, the government eschewed a retrial on
either count two or count three. However, it urged the district
court to allow the life sentence previously imposed on count one to
stand without conducting a new sentencing hearing. The appellant
opposed this suggestion, expostulating that our decision in
Rodríguez-Marrero mandated the holding of a new sentencing hearing.
The government convinced the district court. Pointing
out that the Rodríguez-Marrero panel had affirmed the appellant's
conviction on count one, the court opted to "trash out" the
sentences on counts two and three but to leave intact the existing
sentence on count one. The court accomplished this result by
entering an amended judgment, without convening a new sentencing
hearing. This timely appeal ensued.
Before us, the appellant asserts that the district court
committed reversible error when it indulged the government's
preference and trimmed the original judgment without sentencing him
anew. He reasons that eschewing a fresh sentencing hearing was not
only contrary to this court's mandate but also prejudicial because,
given the vacation of the convictions on counts two and three and
the Supreme Court's decision in United States v. Booker, 543 U.S.
220 (2005), he was no longer subject to an automatic life sentence.
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The government counters that the district court's
decision to leave the sentence on count one intact was a proper
exercise of its discretion because, notwithstanding the vacation of
the convictions on counts two and three, the court could have
cross-referenced the first-degree murder guideline, USSG
§2D1.1(d)(1), and meted out a life sentence on count one alone — a
sentence that would have been within the statutory maximum. See 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A).
In the first instance, our analysis must turn on an
interpretation of the mandate in Rodríguez-Marrero. If the
opinion, fairly read, called for resentencing, then the outcome of
this appeal is dictated by the law of the case. This is a
quintessentially legal question, so our review is plenary. See
Conley v. United States, 323 F.3d 7, 22 (1st Cir. 2003).
The law of the case doctrine contains two branches. One
branch, not implicated here, deals with when a legal determination
made by a court in a civil or criminal case establishes the law of
that case throughout the balance of litigation in that court. See,
e.g., Ellis v. United States, 313 F.3d 636, 646 (1st Cir. 2002).
This appeal implicates the second branch of the doctrine:
the so-called "mandate rule." That rule "prevents relitigation in
the trial court of matters that were explicitly or implicitly
decided by an earlier appellate decision in the same case." United
States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004). In interpreting
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the mandate, the district court "must implement both the letter and
the spirit of the mandate, taking into account the appellate
court's opinion and the circumstances it embraces." United States
v. Connell, 6 F.3d 27, 30 (1st Cir. 1993) (quoting United States v.
Kikumura, 947 F.2d 72, 76 (3d Cir. 1991)).
This branch of the law of the case doctrine has obvious
pertinence here. If, as the appellant insists, our earlier opinion
directs resentencing on count one, the mandate rule would require
the district court to hold a new sentencing hearing — and a failure
to abide by that imperative would be error. We therefore parse the
operative language of our prior opinion to discern the contours of
its mandate.
Such an exercise makes pellucid that we remanded this
case to the district court to resentence the appellant on count
one. The district court was instructed to "vacate [the
appellant's] convictions on counts two and three." Rodríguez-
Marrero, 390 F.3d at 32. It was told that it would re-acquire the
case "for a new trial on those charges if the government wishes to
so proceed, and for resentencing." Id. This language clearly
conveys two distinct commands. First, it instructs the district
court to wipe out the judgments on counts two and three and to
retry those counts if the government elects to press forward.
Second, it independently instructs the district court to
"resentenc[e]" the appellant. Since the only conviction left
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standing in the wake of our earlier opinion was the conviction on
count one, the directive to resentence necessarily referred to that
count. A mandate, like a statute, should be read so that to the
maximum extent practicable every word and phrase has meaning; and
any other reading of Rodríguez-Marrero would render superfluous our
instruction to "resentenc[e]" the appellant.
Were there some ambiguity about this point — and we do
not think that there is — the very next sentence in the concluding
paragraph of the Rodríguez-Marrero opinion eliminates any vestige
of a doubt. Although we affirmed "the convictions and sentences"
of the appellant's codefendants on count one, we affirmed only the
appellant's "conviction" on that count. Id. Conspicuously absent
was any language presuming to affirm the appellant's sentence.
That omission can only be viewed as deliberate.
We add a coda. The prosecution, which urged a
misconstruction of our mandate on the district court, bears
considerable responsibility for what ensued. In all events, the
failure to resentence the appellant as the Rodríguez-Marrero panel
had directed was not harmless. We explain briefly.
To begin, the appellant's guideline sentencing range
(GSR) may or may not differ from the GSR originally calculated by
the district court. With the grouped counts dropped out of the
equation, the appellant's GSR will now depend on the district
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court's factfinding.2 See, e.g., United States v. O'Brien, 435
F.3d 36, 41 (1st Cir. 2006); United States v. Vega Molina, 407 F.3d
511, 535 (1st Cir. 2005); see also United States v. Phillips, 219
F.3d 404, 420 (5th Cir. 2000) (vacating entire sentence on all
counts of conviction because the sentence was calculated through a
grouping that contained vacated counts).
Even apart from changes in the GSR, the dropped counts
alter the dimensions of the sentencing "package." That
circumstance, in and of itself, may lead a sentencing court to
impose a different sentence. See United States v. Pimienta-
Redondo, 874 F.2d 9, 17 (1st Cir. 1989) (en banc) (affirming a
different sentence given by the district court at resentencing on
a single count of conviction after vacation of a conviction on a
parallel count).
Perhaps most important, the sentencing guidelines, which
were viewed as mandatory when the appellant was originally
sentenced, are now interpreted as advisory. See Booker, 543 U.S.
at 240-41. This means that whether or not the GSR remains the
same, the sentencing court has much greater latitude in shaping a
particular sentence. See Gall v. United States, 128 S. Ct. 586,
2
In the absence of some upward adjustment, the conviction for
conspiring to distribute more than five kilograms of cocaine would
carry a BOL of 32. With a criminal history category of III, the
GSR under the advisory guidelines would be 151-188 months. See
USSG ch. 5, pt. A (sentencing table) (2002).
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591 (2007); United States v. Martin, 520 F.3d 87, 91 (1st Cir.
2008).
To be sure, the government is correct when it insists
that the district court could still sentence the appellant to life
imprisonment if it found that a murder had been committed during
and in furtherance of the drug conspiracy. See USSG §2D1.1(d)(1).
But the district court has never made such a finding — and the
appellant, whose right of allocution must be held sacrosanct, was
entitled to contest that point at a new sentencing hearing.3 See
United States v. De Alba Pagán, 33 F.3d 125, 129 (1st Cir. 1994)
(explaining that "[t]he right of allocution affords a criminal
defendant the opportunity to make a final plea to the judge on his
own behalf prior to sentencing"); see also id. at 130 (warning that
"if the trial court fails to afford a defendant either the right of
allocution . . . or its functional equivalent, vacation of the
ensuing sentence must follow automatically").
To sum up, the failure to convene a new sentencing
hearing deprived the appellant of the opportunity to argue his
position both as to matters of fact relevant to sentencing and as
3
The district court did say, subsequent to the order of
remand, that it had made the necessary factual findings at the
original disposition hearing. However, close perscrutation of the
record reveals no such factfinding. To the contrary, the court
relied on the now-vacated convictions (counts two and three) to
overrule the appellant's objection to use of murder as an integer
in the sentencing calculus.
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to the appropriate sentence to be imposed. The error, therefore,
was prejudicial.
We need go no further.4 Because the district court erred
in failing to resentence the appellant on the sole remaining count
of conviction, we vacate the amended judgment and remand to the
district court with instructions to hold a resentencing hearing on
count one. We take no view as to the appropriate sentence to be
imposed; in the first instance, that is for the district court to
decide.
So Ordered.
4
In a pro se brief, the appellant argues that his life
sentence violates the rule of Apprendi v. New Jersey, 530 U.S. 466,
490 (2000). But "Apprendi error arises only if the defendant
receives a sentence beyond the default statutory maximum for the
offense of conviction." United States v. Jiminez, 498 F.3d 82, 87
(1st Cir. 2007). In this case, a life sentence is within the
statutory maximum. See 21 U.S.C. § 841(b)(1)(A).
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