United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 2, 2004
__________________________ Charles R. Fulbruge III
Clerk
No. 03-41145
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KERRY LERON BASS,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(No. V-94-1)
___________________________________________________
Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
In his latest appeal, Defendant-Appellant Kerry L. Bass argues
that he is entitled to a new sentencing hearing and recalculation
of the applicable offense level after our decision in United States
v. Bass, 310 F.3d 321 (5th Cir. 2002) (WIENER, J.) (“Bass I”). We
vacate his sentence and remand for resentencing.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
I. FACTS & PROCEEDINGS
Our prior opinion in Bass I describes in detail the background
facts,1 so we repeat here only that which is germane to this
appeal. In 1994, Bass was charged with 15 federal narcotics and
tax violations, including one count of participation in a
continuing criminal enterprise (“CCE”). After he was convicted on
all counts, the district court sentenced Bass to ten 360-month
terms of imprisonment, followed by five years of supervised
release; one 120-month term of imprisonment, followed by three
years of supervised release; four 12-month terms of imprisonment,
followed by one year of supervised release; and a $650 mandatory
assessment. All prison terms were to be served concurrently. For
the CCE charge, Bass’s punishment included one 360-month term of
imprisonment to be followed by five years of supervised release and
a $50 assessment.
After we affirmed Bass’s conviction and sentence on direct
appeal,2 Bass filed a pro se 28 U.S.C. § 2255 habeas corpus
petition to vacate, set aside, or correct his sentence. That
petition eventually became the subject of Bass I. There, we
concluded that the evidence was insufficient to support Bass’s CCE
conviction, and because his counsel’s failure to raise the issue on
direct appeal was prejudicial, we vacated his CCE conviction. We
1
310 F.3d at 323-25.
2
See United States v. Alix, 86 F.3d 429 (5th Cir. 1996).
2
said, however, that the CCE conviction prejudiced Bass only insofar
as it increased his mandatory assessment by $50. As Bass was
serving all of his sentences concurrently, we remarked that our
vacature of his CCE conviction would not reduce his total time of
incarceration.3
Following remand, Bass filed a motion for an evidentiary
hearing and appointment of counsel. He requested a new sentencing
hearing and recalculation of the applicable offense level because
his total sentence was based on the offense level for the CCE
conviction, his most serious charge. The district court vacated
Bass’s CCE conviction and corresponding $50 assessment, but refused
to hold a new sentencing hearing. To challenge this decision, Bass
lodged this pro se appeal.4
II. ANALYSIS
Bass contends that the district court erred in denying his
post-remand motion for a new sentencing hearing.5 He argues that
our decision in Bass I permitted, but did not require, the district
3
Bass I, 310 F.3d at 330.
4
On June 24, 2004, the Supreme Court rendered its decision
in Blakely v. Washington, 542 U.S. ---, 124 S. Ct. 2531 (June 24,
2004), which raised the specter that the federal sentencing
guidelines may be unconstitutional. Our circuit, however, has
held that Blakely does not invalidate the federal guidelines.
See United States v. Pineiro, No. 03-30437, --- F.3d ----, 2004
WL 1543170 (5th Cir. July 12, 2004). Thus, for now, we do not
consider whether Blakely might have an effect on the issues
presented in this appeal.
5
Bass has also raised other issues on appeal, but as they
are wholly without merit, we do not address them here.
3
court to impose the same prison sentence. The government responds
that our mandate in Bass I prohibited the district court from
resentencing Bass. Although the district court reasonably
interpreted our mandate, we conclude that a new sentencing hearing
is warranted because our earlier vacature of Bass’s CCE conviction
“unbundled” his sentencing package.6
A. Standard of Review
The interpretation of the scope of our remand order in Bass
I and whether the mandate rule foreclosed the district court’s
exercise of discretion on remand present questions of law that we
review de novo.7
B. Bass I Unbundled Bass’s Sentencing Package
In denying Bass’s request for a new sentencing hearing, the
district court dutifully followed our instruction “to reduce his
total assessment to $600 for the remaining 14 counts for which
Bass’s convictions stand.”8 Given our express statement in Bass I
that “Bass’s total time of incarceration will not be shortened as
a result of our decision today to vacate his CCE conviction,”9 the
district court understandably concluded that it was without
authority to reconsider any other aspect of Bass’s punishment.
6
See infra note 15 and accompanying text.
7
See United States v. Phipps, 368 F.3d 505, 510 (5th Cir.
2004).
8
310 F.3d at 330.
9
Id.
4
Nevertheless, Bass is correct that, in calculating the
applicable guideline range, the probation officer had grouped all
15 counts and applied the offense level for the most serious count,
which was the CCE charge. Pursuant to U.S.S.G. § 2D1.5 (the CCE
guideline), four levels were added to the offense level governing
the underlying drug offenses under U.S.S.G. § 2D1.1, resulting in
a total offense level of 42. This score, combined with Bass’s
criminal history category of I, resulted in a guideline sentencing
range of 360 months to life imprisonment. In light of our vacature
of the CCE conviction, though, § 2D1.5 was no longer applicable.
Thus, Bass’s total offense level under § 2D1.1 would only have been
a 38 which, when combined with his criminal history category, would
have yielded a guideline sentencing range of 235 to 293 months’
imprisonment.10 We failed to recognize this in rendering our
decision in Bass I.
The mandate rule requires a lower court to “implement both the
letter and the spirit of the appellate court’s mandate and ... not
disregard the explicit directives of that court.”11 We cannot fault
the district court for its post-remand ruling, but the mandate rule
is a corollary to the law of the case doctrine and is therefore not
10
See U.S.S.G., Chap. 5, Sentencing Table.
11
United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004)
(quoting United States v. Matthews, 312 F.3d 652, 657 (5th Cir.
2002)).
5
“inviolate.”12 If our ruling from a prior appeal in the same case
is “clearly erroneous and would work a manifest injustice,” the
district court on remand may exceed our mandate.13
The punishment imposed by the district court was part of an
integrated “sentencing package,”14 a consideration overlooked in
Bass I:
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 a 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 sentences 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.15
We, therefore, “said too much” in our Bass I opinion about the net
effect of our vacature of Bass’s CCE conviction on his sentence.
12
See id. at 320.
13
Matthews, 312 F.3d at 657.
14
United States v. Campbell, 106 F.3d 64, 68 (5th Cir.
1997). See U.S.S.G. § 5G1.2 (directing the court to sentence
multiple counts of conviction as a single interdependent package,
and to use consecutive as well as concurrent sentencing to
construct a combined sentence equal to the total punishment).
15
United States v. Shue, 825 F.2d 1111, 1114 (7th Cir.
1987). Although our circuit has not expressly used the term
“unbundled,” it is a metaphor widely used among the circuit
courts. See, e.g., United States v. Smith, 115 F.3d 241, 245 n.4
(4th Cir. 1997); United States v. Evans, 314 F.3d 329, 332 (8th
Cir. 2002); United States v. Ruiz-Alvarez, 211 F.3d 1181, 1184
(9th Cir. 2000); United States v. Hicks, 146 F.3d 1198, 1202
(10th Cir. 1998); United States v. Watkins, 147 F.3d 1294, 1297
(11th Cir. 1998).
6
Our failure to acknowledge this principle was error, and
because our vacature of Bass’s CCE conviction could result in a
reduced total sentence for Bass, it would be unjust for Bass not to
be resentenced. At resentencing, the district court may consider
de novo any sentencing-related issues that arise out of our
vacature of Bass’s CCE conviction.16 For example, the court may
consider whether a “role in the offense” adjustment is warranted
under U.S.S.G. § 3B1.1.17
III. CONCLUSION
As our decision in Bass I unbundled Bass’s original sentencing
package, we vacate Bass’s sentence and remand for a new sentencing
hearing and other proceedings consistent with this opinion.18
VACATED and REMANDED.
16
See Lee, 358 F.3d at 323.
17
See, e.g., Ruiz-Alvarez, 211 F.3d at 1183.
18
Whether appointment of counsel and an evidentiary hearing
are necessary in light of our ruling today is a question we leave
to the district court’s sound discretion.
7