IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 1, 2008
No. 07-50531
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LEONARD DUANE GRIFFITH, Also Known as Radar;
MICHAEL CURTIS LEWIS, Also Known as Bones;
MICHAEL NORRIS MARTIN, Also Known as Mikey; and
MALACHI DAVID WREN,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Texas
Before SMITH and PRADO, Circuit Judges, and YEAKEL, District Judge.*
JERRY E. SMITH, Circuit Judge:
Leonard Griffith, Michael Lewis, Michael Martin, and Malachi Wren ap-
peal the respective sentences for their participation in a conspiracy to distribute
methamphetamine. We affirm.
*
District Judge of the Western District of Texas, sitting by designation.
No. 07-50531
I.
Lewis, Wren, and five others were indicted for engaging in a continuing
criminal enterprise (“CCE”) involving more than 15,000 grams of a substance or
mixture containing methamphetamine in violation of 21 U.S.C. § 848. Addition-
ally, the four defendants and twenty-five others were charged with conspiracy
to manufacture, distribute, and possess with intent to distribute over 500 grams
of a substance or mixture containing methamphetamine in violation of 21 U.S.C.
§ 846. At trial, the government tried to prove a large methamphetamine conspir-
acy centered on the Aryan Circle gang.1 All four defendants were convicted as
charged.
Martin and Griffith each objected to his respective presentence investiga-
tion report. Martin requested a four-level decrease for being a minimal partici-
pant, and Griffith objected to receiving enhancement points for obstruction of
justice. The district court sentenced Griffith to 30 years’ imprisonment and Mar-
tin to 210 months for their respective roles in the conspiracy, after enhancing
their offense levels for being leaders of the conspiracy. The court sentenced Lew-
is and Wren to mandatory terms of life imprisonment pursuant to the CCE con-
viction.
Defendants appealed. Martin and Griffith appealed only the leadership
enhancements of their sentences. We reversed the convictions of Lewis and
Wren on the CCE charge and the leadership enhancements to Griffith’s and
Martin’s sentences and remanded for re-sentencing. Lewis, 476 F.3d at 391.
At re-sentencing, defendants asked for a four- or two-level decrease to
1
“The Aryan Circle is a prison-based organization with a white-supremacist ideology.
Its members are, in theory, ranked according to a militaristic hierarchy; membership may be
maintained inside and outside prison, though rank does not necessarily carry over from one
realm into the other.” United States v. Lewis, 476 F.3d 369, 375 (5th Cir.), cert. denied, 127
S. Ct. 2893 (2007).
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No. 07-50531
their offense levels for being minimal or minor participants. Griffith re-raised
his objection to the two-level enhancement for obstruction of justice. The district
court rejected the objections for two reasons: It reasoned, first, that the mandate
rule, or law of the case doctrine, precluded defendants from raising their objec-
tions at re-sentencing and second, that even if the mandate rule did not apply,
defendants had not met their burdens of proof. The court sentenced Lewis and
Wren to 360 months each, Griffith to 262 months, and Martin to 168 months.
II.
Defendants object to the district court’s application of the mandate rule to
their objections regarding their request for a decrease for minimal or minor par-
ticipant. We review a district court’s interpretation of a remand order, including
whether the mandate rule forecloses any of the district court’s action on remand,
de novo. United States v. Elizondo, 475 F.3d 692, 695 (5th Cir.), cert. denied, 127
S. Ct. 1865 (2007).
On remand, the only issues properly before the district court were those
that arose from the remand. United States v. Lee, 358 F.3d 315, 323 (5th Cir.
2004). “All other issues not arising out of this court’s ruling and not raised in
the appeals court, which could have been brought in the original appeal, are not
proper for reconsideration by the district court below.” Id. It follows that an ob-
jection to a sentence must be appealed for the district court, on remand, to have
authority to revisit it.
A.
Martin and Griffith challenge the district court’s refusal to entertain their
arguments that they were entitled four- or two-level decreases pursuant to
U.S.S.G. § 3B1.2 (2004) for being either a minimal or minor participant. Addi-
tionally, Griffith argues the court erred in refusing to entertain his objection to
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No. 07-50531
his two-level enhancement for obstruction of justice, imposed pursuant to
§ 3C1.1 (2004). These arguments are waived.
Martin’s request for a decrease and Griffith’s objection to the enhancement
for obstruction of justice fit squarely within the waiver doctrine announced in
Lee. Neither defendant has demonstrated why he was unable to appeal his issue
in the initial appeal. Each did appeal the leadership enhancements, which we
reversed. See Lewis, 476 F.3d at 391. It does not follow that because they ap-
pealed one aspect of the sentence, they preserved every other objection for review
on remand. In fact, because they had already objected in the district court on
those very grounds, they had every incentive and opportunity to appeal the sen-
tence on those grounds as well. Because they did not, the arguments are waived.
Griffith’s argument concerning his right to a minimal or minor role de-
crease also fails, but it is a more complicated issue. It is a well worn principle
that the failure to raise an issue on appeal constitutes waiver of that argument.
United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000). There is no
doubt that in the first appeal Griffith waived the issue of a decrease for his limit-
ed participation in the conspiracy, because he did not raise it in that court. The
issue is deemed waived on this appeal as well, unless “there was no reason to
raise it in the initial appeal.” Lee, 358 F.3d at 324.
There were certainly reasons to raise the issue of a decrease in the initial
appeal. First, objections to the sentence should extend not only to any enhance-
ments the district court imposes, but also to any decreases the defendant be-
lieves he deserves. The point is to get the sentence correct the first time. A dif-
ferent problem might arise if a defendant were forced to take one of two mutual-
ly exclusive positions such that our decision breathed new life into one of those
positions. See United States v. Whren, 111 F.3d 956, 960 (D.C. Cir. 1997). There
is nothing in our reversal of the leadership enhancement that specifically
breathes life into this question, however, because the issues are not mutually
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No. 07-50531
exclusive.
Secondly, it should have been apparent to Griffith that he could request
a decrease to his offense level; indeed, his co-defendant Martin had already done
so. The mandate rule therefore foreclosed Griffith’s request for a decrease to his
offense level at re-sentencing.
The arguments presented by Martin and Griffith are waived according to
the mandate rule announced in Lee. For this reason, we do not reach their sec-
ond claim that the district court was clearly erroneous in reaching the conclusion
it did. See Lee, 358 F.3d at 323 (“[T]he re-sentencing court can consider what-
ever this court directsSSno more, no less.”).
B.
The mandate rule does not preclude Wren and Lewis from requesting de-
creases in their sentences, pursuant to U.S.S.G. § 3B1.2 (2004), for their alleged
limited participation in the conspiracy. As we noted in our original opinion, the
district court ordered no sentence for Wren and Lewis’s conspiracy conviction,
because conspiracy is a lesser included offense of CCE. Lewis, 476 F.3d at 376.
CCE carries a mandatory life sentence. Wren and Lewis challenged their CCE
convictions, and Wren challenged his conspiracy conviction in this court. We va-
cated the CCE convictions, and on remand the district court sentenced them for
their participation in the conspiracy.
The district court erroneously concluded that the mandate rule precluded
defendants from raising objections to their conspiracy sentences for minor or
minimal participation. In Lee, we reaffirmed “the principle that ‘whether a [par-
ty] waived an issue for consideration at re-sentencing [depends on] whether the
party had [sufficient] incentive to raise th[at] issue in the prior proceedings.”
Lee, 358 F.3d at 324 (brackets in original) (quoting United States v. Hass, 199
F.3d 749, 753 (5th Cir. 1999)).
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No. 07-50531
There is no reason to suppose Wren or Lewis had any reason to argue for
a decrease in his sentence. At the time of their conviction, they had no sentence
to which to object, because they had been sentenced only for their participation
in the CCE. Our rule does not require a defendant to object to every possible
permutation a case may assume after remand; instead, the rule is based in the
proposition that defendants must raise all issues germane to the case as ap-
pealed. See Lee, 358 F.3d at 324. Because neither defendant’s prospective con-
spiracy sentences was germane to the original appeal, wholly because there was
nothing related to sentencing to appeal, the mandate rule does not apply.
III.
The district court determined, in the alternative, that the defendants had
not met their burden of proof that they were substantially less culpable than the
average participant in the conspiracy, so it declined to apply § 3B1.2. We consid-
er only Wren and Lewis’s contention that they deserved such a reduction be-
cause the mandate rule precluded Griffith and Martin from asserting it.
We review a district court’s interpretation of the sentencing guidelines de
novo and its factual findings for clear error. United States v. Huerta, 182 F.3d
361, 364 (5th Cir. 1999). Unless the factual finding is implausible in light of the
record as a whole, it is not clearly erroneous. Id.
The guidelines provide for a four-level decrease if a defendant was a mini-
mal participant in the criminal activity and a two-level decrease if he was a min-
or participant. U.S.S.G. § 3B1.2 (2004). A minimal-participant adjustment is
appropriate for those defendants who “are plainly among the least culpable of
those involved.” U.S.S.G. § 3B1.2 Application Note 4 (2004). A minor partici-
pant adjustment is appropriate for a defendant “who is less culpable than most
other participants, but whose role could not be described as minimal.” U.S.S.G.
§ 3B1.2 Application Note 5 (2004). The determination is fact-based, U.S.S.G.
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No. 07-50531
§ 3B1.2 Application Note 3 (2004), so we will upset a sentence only if that finding
is clearly erroneous. Our inquiry is whether, in light of the whole record, the
finding is implausible. Here it is not.
A.
Lewis was aware of the drug conspiracy and had extensive participation
in it. For example, he organized the cooking of, and sold, methamphetamine.
While incarcerated, he held the rank of captain in the Aryan Circle. Outside of
jail, he was a major.
Curtis Perkins testified that Lewis recruited him to participate in the con-
spiracy and was producing and selling, along with Victor Tucker, ten ounces of
methamphetamine a week. Christopher Barrandey testified that he and Lewis
started the Odessa chapter of the Aryan Circle and that all members of the Ar-
yan Circle were involved in the production of methamphetamine, such that who-
ever needed to borrow money or drugs to meet demand could get it from another
member of the organization.
Lewis’s only counter-argument is that his sentence should be comparable
to Griffith’s because they played similar roles in the conspiracy. In Lewis, 476
F.3d at 389, we said Griffith’s participation in the methamphetamine trade was
minor. In that case, however, we were discussing Griffith’s participation in light
of the district court’s organizer-or-leader enhancement and not in view of wheth-
er Griffith was entitled to the decrease Lewis requests. Id.
Even if we did determine in Lewis that Griffith’s participation was minor
as defined in U.S.S.G. § 3B1.2 (2004), that determination would not extend to
Lewis. We said there was no evidence that Griffith recruited accomplices,
claimed a share of methamphetamine proceeds, or exercised control over others.
Lewis, 476 F.3d at 389. As the above evidence demonstrates, there is certainly
evidence Lewis did all the above.
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No. 07-50531
B.
Wren likewise claims he deserves a decrease pursuant to § 3B1.2 (2004).
He directs our attention to two indications that he did not participate in the con-
spiracy at the level of the others: first, that there was no evidence that he was
a formal member of the Aryan Circle and second, that his name rarely appears
in the record without reference to Barrandey. These suggestions are unpersua-
sive.
It might be the case that the lack of formal membership in an organization
could indicate less-than-average participation in the organization’s conspiracy,
but it is certainly not conclusive. The record indicates that Wren participated
in various skirmishes, stole methamphetamine precursors, and cooked and sold
methamphetamine, all on behalf of the Aryan Circle. His only income came from
that participation.
Barrandey testified that he and Wren cooked one and one-half ounces of
methamphetamine every other day for three months. Barrandey also referred
to Wren as his right hand man. Though this testimony might indicate Wren was
Barrandey’s inferior in the conspiracy, the close relationship could also indicate
that they were equals. It was therefore not clearly erroneous to determine that
Wren was undeserving of a decrease in his offense level for his particular partici-
pation in the conspiracy.
AFFIRMED.
8