United States v. Pineiro

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 9, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 06-30242
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant

v.

FRANCISCO D. PINEIRO,
ALSO KNOWN AS, FRANK PINEIRO,

Defendant-Appellee

----------------------
Appeal from the
United States District Court
for the Western District of Louisiana
----------------------

Before KING, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:

This appeal arises out of the post-Booker resentencing of

Defendant-Appellee Francisco D. Pineiro.1 The facts and

circumstances that frame this third appeal of Pineiro’s sentence

are adequately captured in United States v. Pineiro, 377 F.3d 464

(5th Cir. 2004) (“Pineiro I”), and United States v. Pineiro, 410

F.3d 282 (5th Cir. 2005) (“Pineiro II”). For the sake of brevity,

1
See United States v. Booker, 543 U.S. 220 (2005).
therefore, we reiterate only those facts that are relevant to this

appeal.

I. FACTS AND PROCEEDINGS

In February 2002, Pineiro was indicted on one count of

conspiracy to distribute 100 kilograms or more of marijuana and 50

grams or more of cocaine powder in violation of United States Code,

title 21, section 846, and on two counts of possession with intent

to distribute and aiding and abetting the possession with intent to

distribute marijuana in violation of United States Code, title 21,

section 841(a)(1) and title 18, section 2. At the conclusion of

Pineiro’s jury trial in October 2002, the jury returned a guilty

verdict on all three counts. In its response to a special drug-

quantity interrogatory, the jury found Pineiro guilty of conspiring

to distribute less than 50 kilograms of marijuana and 50 grams or

less of cocaine.

In December 2002, a probation officer issued the customary

Presentence Investigation Report (“PSR”). The PSR concluded that

Pineiro was responsible for 453.6 kilograms of marijuana and

1,048.95 grams of cocaine.2 This produced a base offense level of

2
In the PSR, the probation officer noted the lesser amount
of drugs for which Pineiro was convicted, but continued on in the
related offense conduct section to find that Pineiro was
responsible for the greater amount of drugs.

2
28. The PSR recommended that Pineiro receive a four-level sentence

enhancement for his role as a leader or organizer of the

conspiracy. This produced a total offense level of 32. And, as

Pineiro had no prior convictions, his criminal history category was

I. The combination of Pineiro’s total offense level of 32 and

criminal history category of I resulted in a guideline sentencing

range of 121 to 151 months imprisonment.

Pineiro made several objections to the PSR, two of which were

relevant to Pineiro I. First, in reliance on Apprendi v. New

Jersey,3 he asserted that he should be sentenced on the basis of

the drug quantity found by the jury, not the quantity set forth in

the PSR. Second, he contended that there was insufficient evidence

offered at trial to support his organizer-leader enhancement.

At Pineiro’s sentencing hearing in April 2003, the district

court overruled his objections and sentenced him to 121 months

imprisonment on Count 1 and 60 months imprisonment on each of

Counts 2 and 3, with all sentences to run concurrently. Pineiro

timely filed a notice of appeal.

While the first appeal was pending in this court, the Supreme

Court decided Blakely v. Washington.4 After supplemental briefing

on whether Blakely applied to sentencing under the federal

3
520 U.S. 466 (2000).
4
524 U.S. 296 (2004).

3
sentencing guidelines, and after oral argument in this court on all

issues, we affirmed Pineiro’s sentence, holding that Blakely did

not affect the federal sentencing guidelines and that the district

court’s non-jury drug quantity finding and organizer-leader

enhancement were not erroneous.5

Pineiro then filed a petition for certiorari in the Supreme

Court. After issuing its opinions in Booker, the Court granted

Pineiro certiorari, vacated our judgment, and remanded the matter

to us for further consideration in light of Booker.6

On remand from the Court, we held in Pineiro II that the

prosecution could not meet its burden of showing beyond a

reasonable doubt that the district court would have imposed the

same sentence under an advisory guideline. We concluded that in

accordance with Booker, Pineiro was entitled to resentencing, so we

remanded the case to the district court for resentencing.7

On remand from us, the district judge who had presided over

Pineiro’s trial and sentencing entered an order transferring the

case to another district judge. Prior to being resentenced by the

second judge, Pineiro again urged the district court to sentence

him based on the drug quantities found by the jury and not to apply

5
Pineiro I, 377 F.3d at 473-75.
6
Pineiro v. United States, 543 U.S. 1101 (2005).
7
Pineiro II, 410 F.3d at 285-87.

4
the four-level organizer-leader enhancement. Pineiro urged in the

alternative that if these objections were overruled, the court

should depart downward from the advisory range.

At Pineiro’s resentencing in early 2006, the district court

elected to re-visit Pineiro’s original guideline sentencing range

for the two reasons originally and again advocated by Pineiro ——

the non-jury drug quantity findings and the organizer-leader

enhancement. First, based on Apprendi and Booker, the district

court accepted Pineiro’s drug quantity argument and concluded that

it was bound by the jury’s determination as to the lesser quantity

of drugs for which Pineiro was responsible. Second, as to the

organizer-leader enhancement, the district court rejected Pineiro’s

contention. Accordingly, the district court reduced Pineiro’s

total offense level to 22, reflecting its use of the quantity of

drugs found in the special jury interrogatory and its application

of the organizer-leader enhancement. This produced an advisory

range of 63 to 78 months imprisonment. The court then imposed a

sentence of 63 months imprisonment on Count 1 and 60 months

imprisonment on each of Counts 2 and 3, all sentences to run

concurrently. The government timely filed a notice of appeal,

which brings this matter before us today.

5
 II. LAW AND ANALYSIS

A. Standard of Review

In this appeal following remand in Pineiro II, the government

argues that the district court’s recalculation of Pineiro’s

sentencing guideline range violated the mandate rule —— a facet of

the law-of-the-case doctrine. We review de novo a district court’s

interpretation of our remand order, including whether the law-of-

the-case doctrine or mandate rule forecloses any of the district

court’s actions on remand.8

Pineiro contends that we should review the government’s appeal

under a plain error standard, not de novo. He argues that, because

the government failed to object to the district court’s

recalculation at the time of resentencing, we must conduct our

review under the more deferential plain error standard. This

argument fails.

In determining the sufficiency of objections to preserve

issues for appeal, we apply “‘the general principle that an

objection which is ample and timely to bring the alleged . . .

error to the attention of the trial court and enable it to take

appropriate corrective action is sufficient to . . . preserve the

8
United States v. Hamilton, 440 F.3d 693, 697 (5th Cir.
2006).

6
claim for review.’”9 We have never required a party to express its

objection in minute detail or ultra-precise terms.10

Despite never explicitly mentioning the law-of-the-case

doctrine or the mandate rule, the government made clear at the

resentencing hearing its objection to the district court’s

revisiting and recalculating Pineiro’s total offense level. For

example, counsel for the government made the following statements:

(1) “I don’t think you can throw out the guideline range. The

calculation begins —— I think the purpose is that there is a

guideline range and those —— that information, the drug quantity

was properly calculated in that guideline range. I think the Fifth

Circuit has spoke [sic] to that;” (2) “I think now —— obviously now

it is not mandatory, but it certainly doesn’t negate Probation

calculating that amount for relevant conduct purposes;” (3) “the

guideline issues are no longer mandatory. They’re advisory as in

any case. The Defense put on evidence. I mean, the Defense

objected with [the original district judge] and he rejected it. He

rejected their argument then, and in saying that, mandatory or not,

he believed it. . . . [E]ven though it was mandatory and not

9
United States v. Williams, 985 F.2d 749, 755 (5th Cir.
1993) (quoting Osborne v. Ohio, 495 U.S. 103, 125 (1990)).
10
See, e.g., United States v. Saldana, 427 F.3d 298, 314
n.67 (5th Cir. 2005); United States v. Akpan, 407 F.3d 360, 375-
76 (5th Cir. 2005); United States v. Pankhurst, 118 F.3d 345,
356-57 (5th Cir. 1997).

7
advisory, I think that’s the issue now, not that the guideline

range was inappropriate to calculate it;” (4) “Now those guideline

range [sic], the Government submits, are still appropriate, but

this Court is well aware they’re advisory only. That’s an issue

that exist [sic] here post-Booker;” (5) “So I think, again, the

issue is not to the calculation aspect of it, it’s simply an issue

whether the Court will stay within the guideline range or find a

reason to deviate from them, because they’re now advisory, giving

the Court the opportunity to go below or above that range;” and (6)

“Whether or not [the original district judge] felt [the sentencing

guideline range] was mandatory or not, I think it’s why we’re

here.” These statements, along with others, were sufficient to

preserve the government’s objection implicating the mandate rule

and entitles it to a de novo review.

B. Applicable Law

The mandate rule, which is a corollary or specific application

of the law of the case doctrine,11 prohibits a district court on

remand from reexamining an issue of law or fact previously decided

on appeal and not resubmitted to the trial court on remand.12 This

prohibition covers issues decided both expressly and by necessary

11
United States v. Lee, 358 F.3d 315, 320-21 (5th Cir.
2004).
12
United States v. Matthews, 312 F.3d 652, 657 (5th Cir.
2002).

8
implication, and reflects the jurisprudential policy that once an

issue is litigated and decided, “‘that should be the end of the

matter.’”13 This rule is essential to the orderly administration

of justice, as it is aimed at preventing obstinate litigants from

repeatedly reasserting the same arguments and at discouraging

opportunistic litigants from appealing repeatedly in the hope of

acquiring a more favorable appellate panel.14

When on remand the district court assays to implement the

mandate, it must proceed within the letter and spirit of the

mandate by taking into account the appeals court’s opinion and the

circumstances it embraces.15 In the context of remands for

resentencing, this circuit employs a restrictive approach: The

resentencing court may consider only that which we direct —— no

more, no less.16 “All other issues not arising out of this court’s

ruling and not raised before the appeals court, which could have

been brought in the original appeal, are not proper for

13
Lee, 358 F.3d at 320 (citing Crowe v. Smith, 261 F.3d
558, 562 (5th Cir. 2002), and quoting United States v. United
States Smelting Ref. & Mining Co., 339 U.S. 186, 198 (1950)).
14
Matthews, 312 F.3d at 657.
15
Sobley v. Southern Natural Gas Co., 302 F.3d 325, 333
(5th Cir. 2002).
16
United States v. Marmolejo, 139 F.3d 528, 530-31 (5th
Cir. 1998).

9
reconsideration by the district court below.”17

Despite its importance, the mandate rule is a discretionary

device and not immutable.18 Three exceptions to the imposition of

this rule are recognized: (1) Introduction of evidence at a

subsequent trial that is substantially different; (2) an

intervening change in controlling authority; and (3) a

determination that the earlier decision was clearly erroneous and

would work a manifest injustice.19

C. Merits

In our de novo review, we address the substance of this

appeal. In Pineiro I, Pineiro sought review of the district

court’s two guideline rulings —— the non-jury drug quantity finding

and the organizer-leader enhancement. After concluding that

Blakely was not applicable to the federal guidelines, we affirmed

both the drug quantity and organizer-leader determinations.

As to the drug quantity calculation, we noted in Pineiro I

that “the Guidelines direct the judge to impose a sentence based

not only on the conduct reflected in the verdict but also on other

17
Id. at 531.
18
United States v. Becerra, 155 F.3d 740, 753 (5th Cir.
1998).
19
Id. at 752-53.

10
related conduct.”20 We then concluded that the district court

correctly calculated the quantity of drugs “notwithstanding the

fact that the jury specifically acquitted Pineiro of the large drug

quantities later found by the judge.”21 As to the organizer-leader

determination, we similarly concluded that there was no clear error

in the district court’s application of this enhancement to

Pineiro.22

After granting certiorari, the Supreme Court vacated our

decision in Pineiro I and remanded “for further consideration in

light of United States v. Booker.”23 Thus Booker did not work a

change in the law subsequent to Pineiro II; that holding was a

preceeding change vis-à-vis Pineiro II.

Given the scope of the Court’s remand, we did not address any

of Pineiro’s earlier attacks on his guideline calculation, but

instead, limited our review and thereby limited the scope of our

eventual mandate to whether resentencing was required under the

20
Pineiro I, 377 F.3d at 474 (citing U.S.S.G. § 1B1.3, and
Edwards v. United States, 523 U.S. 511, 513-15 (1998)) (emphasis
added).
21
Id. (citing United States v. Watts, 519 U.S. 148, 152-57
(1997)).
22
Id. at 475.
23
Pineiro, 543 U.S. at 1101 (reporter citations omitted).

11
post-Booker advisory guideline regime.24 In conducting this review,

the only issue we determined was that the government was not able

to demonstrate that any Booker error was harmless beyond a

reasonable doubt. Consequently, we remanded this matter to the

district court solely for “resentencing in accordance with

Booker.”25

By recalculating Pineiro’s guideline range, the district court

exceeded the scope of our mandate. Under the limits of our mandate

in Pineiro II, the district court was only to resentence Pineiro

under an advisory guideline regime, not recalculate his total

offense level; that had never been addressed or vacated on appeal.

Under both the pre- and post-Booker regimes, a jury’s verdict of

acquittal on some drug-quantity counts does not prevent the

sentencing court from considering conduct underlying the acquitted

count as long as that “related” conduct has been proved by a

preponderance of the evidence.26 Under this standard, we affirmed

the sentencing finding of (1) drug quantity for purposes of

calculating Pineiro’s offense level and (2) Pineiro’s organizer-

leader status. Neither Booker nor Pineiro II disturbed these

24
Pineiro II, 410 F.3d at 283.
25
Id. at 287.
26
United States v. Valdez, 453 F.3d 252, 264 (5th Cir.
2006); United States v. Cathey, 259 F.3d 365, 368 (5th Cir.
2001).

12
findings.

In resentencing Pineiro on remand, the district court appears

to have misapprehended Booker and our post-Booker caselaw when it

concluded that it could sentence Pineiro only on facts that were

established by either a guilty plea or jury verdict. It further

appears that the district court recalculated Pineiro’s total

offense level based on this erroneous conclusion. The district

court apparently believed it was following Booker, our post-Booker

caselaw, and our mandate; it just misconstrued the three.

Moreover, this case does not present a situation involving any

of the three exceptions to the mandate rule. There was neither a

subsequent trial nor an intervening change in controlling authority

between the issuance of our remand mandate in Pineiro II and

Pineiro’s resentencing on remand. Additionally, the decisions of

our panels in Pineiro I and Pineiro II were not clearly erroneous

and would not work a manifest injustice.

Finally, Pineiro asserts that even if the district court

erred, such error was harmless, because that court would have

imposed the same sentence even if it had not recalculated the total

offense level. There is simply nothing in the record to support

this contention. If anything, based on the district court’s

statements, it appears that the district court would not have

departed downward from the guideline range —— especially not by

13
48%, which would be an extraordinary reduction requiring

extraordinary circumstances.27

III. CONCLUSION

Based on our view of the applicable law and our extensive

review of the parties’ briefs and the record on appeal, we conclude

that the district court at resentencing exceeded the boundaries of

our mandate. Accordingly, we again vacate Pineiro’s sentence and

remand for resentencing in a manner consistent with this opinion

and the Supreme Court’s opinion in Booker, and within the limits of

our mandate in Pineiro II.

VACATED AND REMANDED.

27
United States v. Desselle, 450 F.3d 179, 183 (5th Cir.
2006).

14