United States v. Mendez

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0315p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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-
-
No. 05-6777
v.
,
>
VICTOR MENDEZ, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 01-00190—Curtis L. Collier, Chief District Judge.
Submitted: July 27, 2007
Decided and Filed: August 15, 2007
Before: SILER and COOK, Circuit Judges; and REEVES, District Judge.*
_________________
COUNSEL
ON BRIEF: Barry L. Abbott, CAVETT & ABBOTT, Chattanooga, Tennessee, for Appellant.
Gregg L. Sullivan, ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for
Appellee.
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OPINION
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PER CURIAM. Victor Mendez was convicted of conspiracy to distribute methamphetamine
and carrying a firearm during and in relation to a drug trafficking crime. He challenges his sentence,
and we affirm.
I
A grand jury indicted Mendez for conspiracy to distribute 500 grams or more of a substance
containing methamphetamine, 21 U.S.C. § 841(a)(1), and for carrying a firearm during and in
relation to a drug trafficking crime, 18 U.S.C. § 924(c). After a trial, the jury foreman checked “no”
on the verdict form to indicate that the government had not proven beyond a reasonable doubt that
the offense involved at least 500 grams; however, he checked “yes” to indicate that the government

*
The Honorable Danny C. Reeves, United States District Judge for the Eastern District of Kentucky, sitting by
designation.

1
No. 05-6777 United States v. Mendez Page 2

had proven at least 50 grams beyond a reasonable doubt. The jury also convicted on the firearm
charge. The Presentence Investigation Report (PSIR) attributed to Mendez 2.95 kilograms of
methamphetamine based on trial testimony of Mendez’s customer, Paula Crouch. Mendez objected
to the PSIR’s drug quantity, arguing that it would be improper for the sentencing court to rely on
the PSIR’s calculation of 2.95 kilograms after the jury had rejected the 500-gram offense in favor
of the 50-gram offense. The court overruled Mendez’s objection and concluded that the PSIR
accurately stated the facts of the case. The court sentenced Mendez to 211 months: 151 months1 on
the drug conspiracy count and a 60-month mandatory minimum consecutive sentence on the firearm
count. This court affirmed the sentence. United States v. Mendez, 97 F. App’x 583, 586 (6th Cir.
2004). The Supreme Court granted certiorari, vacated, and remanded for reconsideration in light
of United States v. Booker. Mendez v. United States, 543 U.S. 1104 (2005). This court then vacated
Mendez’s sentence and remanded for resentencing. At resentencing, the district court explained that
it believed the Sixth Circuit had vacated Mendez’s sentence not because the district court erred in
adopting the facts recited in the PSIR, but rather because the district court had treated the Guidelines
as mandatory. Therefore, the court acknowledged the newly advisory status of the Guidelines,
reiterated its adoption of the facts recited in the PSIR, and resentenced Mendez to the same term as
before. Mendez appealed.
II
Mendez argues that the district court used an improper Guidelines range at resentencing.
This argument stems from the language used in this court’s post-Booker order remanding for
resentencing, which reads, in relevant part:
We conclude that the plain error test is satisfied. First, the district court erred by
sentencing Mendez under mandatory sentencing guidelines to a higher drug quantity
than was found by the jury beyond a reasonable doubt. The jury had convicted
Mendez of conspiring to distribute at least 50 grams of a methamphetamine mixture,
which corresponds to level 26. Combined with Mendez’s criminal history category
of I, his guideline range should have been 63 to 78 months in prison for the
conspiracy count. The district court, however, sentenced Mendez to 151 months in
prison for the conspiracy count, after finding by a preponderance of the evidence that
Mendez was responsible for distributing 2.95 kilograms of methamphetamine
mixture. We note, however, that Booker does not affect Mendez’s sentence for
carrying a firearm during a drug-trafficking offense as he was sentenced to the
mandatory minimum of 60 months in prison on that count.
Mendez appears to make two arguments: (1) that the district court was somehow bound by language
in the Sixth Circuit’s order (italicized above) to use the 63 to 78 month range; and (2) that “the
District Court failed to utilize the accurate guideline range at sentencing” (presumably because it
attributed 2.95 kilograms of methamphetamine to Mendez). Both arguments fail.
The first argument implicates two complementary doctrines: the law-of-the-case doctrine
and the mandate rule. “Under the doctrine of law of the case, findings made at one point in the
litigation become the law of the case for subsequent stages of that same litigation.” United States
v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994) (citing United States v. Bell, 988 F.2d 247, 250 (1st
Cir. 1993)). The mandate rule “requires lower courts to adhere to the commands of a superior
court.” Id. (citing Bell, 988 F.2d at 251). Though both doctrines “generally preclude a lower court
from reconsidering an issue expressly or impliedly decided by a superior court,” id., one must still

1
This represents the lower end of the Guidelines range for this count, as Mendez’s Criminal History Category
of I and Offense Level of 34 suggest a range of 151–88 months.
No. 05-6777 United States v. Mendez Page 3

determine whether the issue actually was “expressly or impliedly decided.” In Bell, the First Circuit
instructed that “[a]n appellate court’s disposition of an appeal must be read against the backdrop of
prior proceedings in the case.” 988 F.2d at 250.
We read the order remanding for resentencing in light of Booker as not purporting to bind
the lower court to the 63 to 78 month range. Although the remand order could have been clearer,
we conclude that the language quoted above says nothing more than that Mendez’s range “should
have been 63 to 78 months” under a mandatory Guidelines regime, since that was the only range
supported by a jury’s beyond-a-reasonable-doubt factual findings. So read, this language says
nothing about the appropriate range under the advisory Guidelines regime to be used by the district
court at the post-Booker resentencing. We therefore reject Mendez’s first argument.
Mendez’s second argument seems to be that the district court could not have considered
“acquitted conduct” to determine Mendez’s Guidelines range. In other words, Mendez complains
that because the jury determined that he did not possess more than 500 grams, the district court
should not have been allowed to attribute 2.95 kilograms to him at resentencing.
In United States v. Watts, the Supreme Court held “that a jury’s verdict of acquittal does not
prevent the sentencing court from considering conduct underlying the acquitted charge, so long as
that conduct has been proved by a preponderance of the evidence.” 519 U.S. 148, 157 (1997).
Watts preceded Booker, but this court has repeatedly held since Booker that sentencing courts may
still find facts using the preponderance-of-the-evidence standard. See United States v. Gates, 461
F.3d 703, 708 (6th Cir. 2006); United States v. Coffee, 434 F.3d 887, 897–98 (6th Cir. 2006); United
States v. Stone, 432 F.3d 651, 654–55 (6th Cir. 2005) (“Booker did not eliminate judicial fact-
finding. Instead, the remedial majority gave district courts the option, after calculating the Guideline
range, to sentence a defendant outside the resulting Guideline range.”). And in United States v.
Brika, 487 F.3d 450, 458–60 (6th Cir. 2007), this court concluded after a thorough analysis that
Booker did not disturb Watts, and therefore confirmed that a post-Booker sentencing court may
consider even “acquitted conduct” if it finds facts supporting that conduct by a preponderance of the
evidence.2
In this case, the PSIR attributed 2.95 kilograms of methamphetamine to Mendez. At the
original, pre-Booker sentencing hearing, the court “decided that the presentence report accurately
reflect[ed] the facts in the report.” A fair reading of the transcript confirms that the court was
applying the preponderance standard. On direct appeal (before the Supreme Court’s Booker
remand), this court affirmed the district court’s use of 2.95 kilograms because “the evidence in the
record reasonably supported the determination.” Mendez, 97 F. App’x at 586. Neither the Supreme
Court’s remand nor this court’s corresponding remand questioned the accuracy of this finding, and
at resentencing, the court correctly remarked, “The circuit court . . . did not disturb the Court’s
findings regarding the accuracy of the presentence report, [or] the facts stated in the report . . . .
Therefore all the Court’s earlier rulings will stand.” Because Watts and Brika permit consideration
of such “acquitted conduct,” we reject Mendez’s argument.
III
In the second section of his brief, Mendez appears to make two additional arguments. The
first one is that the district court incorrectly calculated Mendez’s Guidelines range, and that
additional factual findings would have been required for the district court to attribute 2.95 kilograms

2
Brika specifically concerned not “acquitted conduct” but “conduct on which a jury could not agree”—or, to
coin a phrase, “deadlocked conduct.” See Brika, 487 F.3d at 458. But Brika saw no meaningful distinction between the
two, and neither do we. See id. at 459 (“[W]e see no reason to exclude from the court’s consideration conduct on which
a jury either deadlocked or rendered a judgment of acquittal.”).
No. 05-6777 United States v. Mendez Page 4

of methamphetamine to Mendez. The second one suggests that his sentence is “procedurally
unreasonable” because the resentencing court failed to consider the 18 U.S.C. § 3553(a) factors.
Both of these arguments fail.
The first is simply a retread of counsel’s oft-repeated argument that the district court should
not have attributed 2.95 kilograms of methamphetamine to Mendez. As stated above, before the
Supreme Court’s Booker remand, this court affirmed the district court’s attribution of 2.95 kilograms
because “the evidence in the record reasonably supported the determination.” Mendez, 97 F. App’x
at 586. And on remand from the Supreme Court, this court said nothing of the accuracy of the
district court’s findings. Therefore, we reject this argument.
The second argument is that the district court failed to consider the § 3553(a) factors and
thereby imposed a “procedurally unreasonable” sentence. See, e.g., United States v. Smith, 474 F.3d
888, 894 (6th Cir. 2007) (“Procedural reasonableness requires a sentencing judge to ‘consider’ the
factors outlined in 18 U.S.C. § 3553(a).”). Mendez criticizes the district court’s consideration of
the factors as cursory. At best, this argument could be interpreted as criticizing the court for only
explicitly considering the Guidelines range, 18 U.S.C. § 3553(a)(4), and “the nature and
circumstances of the offense and the history and characteristics of the defendant,” id. § 3553(a)(1).
Although the district court’s explanation at resentencing was short, we conclude that Mendez’s
sentence was not “procedurally unreasonable.”
A district court need not engage in “ritualistic incantation” of the § 3553(a) factors. E.g.,
United States v. Chandler, 419 F.3d 484, 488 (6th Cir. 2005). Though the district court at
resentencing did not explicitly enumerate any of the factors, it obviously considered the appropriate
Guidelines range, 18 U.S.C. § 3553(a)(4), and its statement that it would be “[t]aking into account
the nature and circumstances of the offense and [Mendez’s] history and . . . characteristics” parallels
the language of 18 U.S.C. § 3553(a)(1). Moreover, given the limited nature of the Booker remand,
see, e.g., United States v. Perry, No. 06-3514, 2007 WL 1113264, at *3 n.2 (6th Cir. Apr. 13, 2007)
(citing United States v. Worley, 453 F.3d 706, 709–10 (6th Cir. 2006)), we may look to the more
thorough explanation furnished at the original sentencing hearing. At the initial sentencing, the
court gave careful consideration to the circumstances of the offense and the defendant’s history, 18
U.S.C. § 3553(a)(1), when it remarked how stiff the Guidelines sentence seemed for a young man
with no criminal history. The court also took care “to provide the defendant with [other] needed . .
. correctional treatment,” id. § 3553(a)(2)(D), when it recommended Mendez for a drug treatment
program. And the court’s imposition of a sentence at the absolute bottom of the Guidelines range
suggests it attempted to make the punishment fit the crime; See id. § 3553(a)(2)(A)–(C).
Considering these proceedings together, the district court’s explanation of its sentencing decision
surely “‘allow[s] for reasonable appellate review.’” United States v. Ward, 447 F.3d 869, 871 (6th
Cir. 2006) (quoting United States v. Kirby, 418 F.3d 621, 626 (6th Cir. 2005)); see also Rita v.
United States, 127 S. Ct. 2456, 2469 (2007).
Mendez’s sentence falls within the (correctly-calculated) advisory Guidelines range and
therefore is presumed reasonable. E.g., Rita, 127 S. Ct. at 2462; United States v. Williams, 436 F.3d
706, 708 (6th Cir. 2006). This presumption may be rebutted, Williams, 436 F.3d at 708, but Mendez
has not done so. His only argument at resentencing (other than the one regarding the scope of the
Sixth Circuit’s remand order) was that the court should consider various post-incarceration
rehabilitative efforts. But a district court resentencing a defendant after a Booker remand is “not
required to consider any of [the defendant’s] post-sentencing rehabilitative efforts.” United States
v. Monday, 218 F. App’x 419, 424 (6th Cir. 2007); see also United States v. Adams, 209 F. App’x
530, 535 (6th Cir. 2006); Worley, 453 F.3d at 709–10. Mendez presents no argument why any
particular § 3553(a) factor renders his sentence unreasonable, which further undermines his position.
See, e.g., United States v. Kerrent, 219 F. App’x 448, 450 (6th Cir. 2007) (per curiam) (noting that
§ 3553(a)(6) “did not apply because [the defendant] never argued that his within-guidelines sentence
No. 05-6777 United States v. Mendez Page 5

would create sentencing disparities”); United States v. Perez-Garcia, 191 F. App’x 389, 392 (6th
Cir. 2006); United States v. Christopher, 415 F.3d 590, 594 (6th Cir. 2005) (“Nor has [the
defendant] offered any explanation on appeal as to what factors listed in § 3553(a) the district court
should have considered, or how these factors would have made a difference in the sentence he
received.”). We therefore conclude that Mendez’s sentence was not “procedurally unreasonable.”

IV
For these reasons, we affirm.