United States Court of Appeals
Fifth Circuit
F I L E D
In the January 15, 2007
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 06-10131
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ENRIQUE ELIZONDO, ALSO KNOWN AS RICKEY ELIZONDO,
Defendant-Appellant
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:03-CR-395-3
______________________________
Before HIGGINBOTHAM, SMITH, and for resentencing.
DEMOSS, Circuit Judges.
I.
JERRY E. SMITH, Circuit Judge: A jury convicted Elizondo for his participa-
tion in a scheme to defraud undocumented ali-
Enrique Elizondo was convicted of conspir- ens by promising them immigration services.
acy to commit mail fraud. We affirmed his We remanded “for resentencing in accordance
conviction but remanded for resentencing in with Booker.” United States v. Garza, 429
light of United States v. Booker, 543 U.S. 220 F.3d 165, 174 (5th Cir. 2005), cert. denied,
(2005). He now appeals his new sentence, in- 126 S. Ct. 1444 (2006). The district court im-
cluding the restitution order. We affirm the re- posed the same sentence on remand.
stitution but vacate the sentence and remand
The heart of this appeal is the court’s rea- Court of Appeals has already determined
sons for doing so. Elizondo contends that the the facts in this case to be, viewed in the
court erroneously believed it was constrained light most favorable to the government's
by our opinion affirming the sufficiency of the verdict, and so I appreciate the diligence
evidence for Elizondo’s conviction. Specifi- that you have shown and your professional-
cally, Elizondo argues that the court (1) re- ism in making these arguments, but I simply
fused to consider his relevant conduct1 in re- am not persuaded by them, and so I will
sentencing and (2) refused to entertain objec- overrule the defendant’s objections and re-
tions to the restitution penalty. solve those objections in the manner rec-
ommended by the probation officer.
The district court explained the reason it
resentenced Elizondo to the same sentence: Similarly, the court stated the reasons for
refusing to amend the amount of restitution:
I am going to resolve the defendant’s ob-
jections in the manner recommended by the I believe that the Mandatory Victim Resti-
probation officer . . . . Beyond saying that, tution Act of 1996 is applicable . . . . And
I want to make just a couple of comments the amount of loss was originally deter-
. . . . It seems to me that the submissions minedSSand I see no reason to change this
that you gave me were accurate in the determination nowSSto be $176,176. . . .
sense that the lynchpin of your argument is One comment I should probably make in
that Mr. Elizondo’s relevant conduct within the event that another appeal is taken from
the meaning of Guideline Section 1B1.3 this sentence, Ms. Brandt on behalf of Mr.
was limited to his acts and omissions at the Elizondo made the point in her objections
Corsicana office, and thus, he could not and sentencing memorandum that at most
reasonably foresee the entire scope of this five hundred dollars in restitution could be
conspiracy or joint criminal activity so that ordered to be made by Mr. Elizondo be-
he could not be jointly and severally liable cause of his limited role in this joint crimi-
for the amount of the restitution order nal activity. I am not clear whether that
which was [$176,000.00] or for the offense argument is really open to Mr. Elizondo on
level that was computed in the Presentence this resentencing, although admittedly re-
Report which was based upon the amount stitution orders are a part of a sentence in a
of loss to these victims, the number of vic- criminal case. But it appeared to me that
tims and the fact that the victims were es- argument might have been foreclosed by
pecially vulnerable. The reason I think that the Court of Appeals in its opinion in this
argument concerning relevant conduct is case . . . . So as I said, I think certainly the
off the mark is the language of the Court of opinion of the Court of Appeals can be read
Appeals itself in this written opinion issued to foreclose the argument made here by
by the Court on October 25th, 2005 . . . . Mr. Elizondo limiting the amount of restitu-
In other words, I think the view that Mr. tion he has been ordered to make. But
Elizondo is urging now as to his role in the even if that issue is fully open again on re-
conspiracy is at variance with what the sentencing, I see no reason to make any dif-
ferent restitution order now than I did ori-
ginally and thus decline to do so.
1
See U.S.S.G. § 1B1.3.
2
II. F.3d 740, 752 (5th Cir. 1998) (quoting Ill.
Elizondo appeals on two grounds. We ad- Cent. Gulf R.R. v. Int’l Paper Co., 889 F.2d
dress each in turn. 536, 539 (5th Cir.1989)).
A. Despite the government’s arguments to the
Elizondo contends that the court errone- contrary, the district court appears to have
ously refused to consider his relevant conduct considered itself constrained by our prior de-
in his second sentence because of its incorrect cision. The court stated that the reason it
belief it was bound by our prior opinion’s dis- thought the “argument concerning relevant
cussion of the facts.2 In response, the govern- conduct is off the mark is the language of the
ment urges that the court (1) did not base its Court of Appeals.” Further, Elizondo’s argu-
decision on our prior opinion and (2) could not ment failed, the court states, because it “is at
have properly considered Elizondo’s relevant variance with what the Court of Appeals has
conduct, because of the mandate rule.3 already determined the facts in this case to be.”
The court did not give any independent rea-
“We review de novo a district court’s inter- sons for rejecting Elizondo’s request that the
pretation of our remand order, including court look at his relevant conduct; it solely
whether the law-of-the-case doctrine or man- relied on our prior opinion.
date rule forecloses any of the district court’s
actions on remand.” Pineiro, 470 F.3d at 204. The court erred by considering itself bound
The district court’s statements about our prior by our determination of the facts. In our prior
opinion and that opinion’s binding effect on opinion, we determined whether a reasonable
the district court are properly analyzed under jury could have found Elizondo guilty.4 We
the law of the case doctrine, under which “‘an did not determine what actually happened; in-
issue of law or fact decided on appeal may not stead, we determined whether the evidence
be reexamined either by the district court on was sufficient to support the verdict. For sen-
remand or by the appellate court on a subse- tencing, however, a court does not draw every
quent appeal.’” United States v. Becerra, 155 reasonable inference in favor of the govern-
ment, so our conclusions about the facts being
sufficient were not binding at resentencing.
2
Elizondo’s brief analyzes the case through the
lense of the doctrine of collateral estoppel, but we Moreover, in our prior opinion we deter-
analyze resentencing cases under the law of the mined the sufficiency of the evidence to estab-
case doctrine. E.g., United States v. Pineiro, 470 lish that Elizondo had committed an offense,
F.3d 200, 204-05 (5th Cir. 2006); United States v.
Hamilton, 440 F.3d 693, 697 (5th Cir.), cert.
dism’d, 126 S. Ct. 2887, cert. denied, 127 S. Ct.
4
176 (2006); United States v. Lee, 358 F.3d 315, In our prior opinion, we made plain that we
320 (5th Cir. 2004). were reviewing only whether the evidence was suf-
ficient. Garza, 429 F.3d at 169 (“This evidence is
3
The government also argues that Elizondo clearly sufficient for a rational jury, viewing the
waived this argument by not raising the issue of his evidence in the light most favorable to the Govern-
relevant conduct in his first appeal. Elizondo’s ment, to have found all the elements of conspiracy
prior brief did raise the issue of his relevant con- to commit mail fraud beyond a reasonable
duct, so the government’s contention is meritless. doubt.”).
3
but sentencing requires evaluating facts be- of the defendant’s relevant conduct.6 The dis-
yond the facts required to establish an offense. trict court could not accomplish its mandate
In United States v. Murrow, 177 F.3d 272, without considering relevant conduct, so the
301 (5th Cir. 1999), we explained that sen- mandate rule did not preclude it from doing
tencing requires a judge to look at all the defen- so. Because it erroneously considered itself
dant’s relevant conduct, not just the conduct bound by our prior discussion of the facts, it
that constitutes the offense.5 Even if our prior erred in resentencing.
opinion had established the facts of the case, it
established only the facts relating to the crimi- B.
nal liability. The district court still needed to Elizondo complains that the district court
decide other relevant facts. erroneously refused to alter his restitution.
The court, however, was precluded by the
The government posits that even if the dis- mandate rule from considering a change to the
trict court erred, we should not vacate the sen- restitution penalty. We remanded for resen-
tence and remand, because the district court tencing in accordance with Booker, which
lacked the power to evaluate Elizondo’s rele- does not implicate the statute under which Eli-
vant conduct under the mandate rule. That zondo was ordered to pay restitutionSSthe
rule “compels compliance on remand with the Mandatory Victims Restitution Act.7 Thus, re-
dictates of a superior court and forecloses re- sentencing in accordance with Booker does not
litigation of issues expressly or impliedly de- require reevaluating the restitution order. The
cided by the appellate court.” Lee, 358 F.3d at district court would have exceeded its mandate
321. We have adopted a restrictive rule for if it changed the amount of restitution, so it did
evaluating the scope of a mandate, id. at 321; not err in refusing to alter Elizondo’s restitu-
“the resentencing court can consider whatever tion penalty.
this court directsSSno more, no less,” id.
at 323. We AFFIRM Elizondo’s restitution, but we
VACATE his sentence and REMAND for re-
The mandate instructed the district court to sentencing in accordance with this opinion.
resentence “in accordance with Booker.” A
consideration of Elizondo’s relevant conduct
fell within this mandate, because sentencing
under the guidelines requires a consideration
6
United States v. Alonzo, 435 F.3d 551, 553
(5th Cir. 2006) (“It is apparent that facts relevant
5
“Under the Sentencing Guidelines, the sentenc- to sentencing include relevant conduct under
ing range for a particular offense is determined on U.S.S.G. § 1B1.3.”).
the basis of all ‘relevant conduct’ in which the de-
7
fendant was engaged and not just with regard to the See Garza, 429 F.3d at 170 (“Booker’s hold-
conduct underlying the offense of conviction.” ing that the Sentencing Guidelines are advisory
Murrow, 177 F.3d at 301. See also U.S.S.G. does not directly affect the MVRA since it is a stat-
§ 1B1.3 cmt. n.1 (“The principles and limits of ute ‘distinct and separate from the United States
sentencing accountability under this guideline are Sentencing Guidelines.’ See United States v. Sose-
not always the same as the principles and limits of bee, 419 F.3d 451, 462 (6th Cir.), cert. denied,
criminal liability.”). 126 S. Ct. 843 (2005).”).
4