United States Court of Appeals,
Eleventh Circuit.
No. 95-2407.
UNITED STATES of America, Plaintiff-Appellee,
v.
Terry Lynn STINSON, Defendant-Appellant.
Oct. 10, 1996.
Appeal from the United States District Court for the Middle
District of Florida. (No. 90-6-Cr-J-20), Harvey E. Schlesinger,
District Judge.
Before COX, Circuit Judge, HILL, Senior Circuit Judge, and VINING*,
Senior District Judge.
PER CURIAM:
Terry Lynn Stinson appeals the sentence imposed at
resentencing on five counts arising out of his robbery of a Florida
bank. We affirm.
I. Background
Terry Lynn Stinson was convicted on his plea of guilty on five
counts arising out of his robbery of a Florida bank. Stinson was
initially sentenced in July 1990. Based on the understanding that
possession of a firearm by a convicted felon was a "crime of
violence," the district court classified Stinson as a career
offender under the Sentencing Guidelines. See United States
Sentencing Commission, Guidelines Manual § 4B1.1 (Nov. 1989). The
district court determined Stinson's guidelines range to be 292-365
months plus a consecutive term of 60 months on Stinson's conviction
for use of a firearm during a crime of violence.
*
Honorable Robert L. Vining, Jr., Senior U.S. District Judge
for the Northern District of Georgia, sitting by designation.
Counsel for the Government asked the district court to depart
upward two offense levels; this departure would have resulted in
a guidelines range of 360 months to life imprisonment. The
district court refused to depart upward, finding that the high end
of the guidelines range would satisfy the Government's concerns.
The district court also stated that had the high end of the
sentencing range not been sufficient, in its judgment, to protect
society, the court would have departed upward. The district court
sentenced Stinson to 365 months imprisonment plus a mandatory
consecutive term of 60 months to be followed by five years
supervised release.
Stinson appealed his sentence on the ground that possession of
a firearm by a convicted felon was not a "crime of violence" that
would subject him to career offender status under U.S.S.G. § 4B1.1.
This court affirmed the sentence imposed by the district court.
United States v. Stinson, 943 F.2d 1268 (11th Cir.1991) ( Stinson
I). Following our decision inStinson I, the Sentencing Commission
amended its commentary to § 4B1.2 to indicate that the term "crime
of violence" does not include possession of a firearm by a
convicted felon. U.S.S.G. § 4B1.2, commentary, n. 2 (Nov. 1991).
We then denied Stinson's petition for rehearing, which was based on
the subsequent commentary, United States v. Stinson, 957 F.2d 813
(11th Cir.1992) (Stinson II), and denied his petition for rehearing
en banc.
The Supreme Court granted Stinson's petition for writ of
certiorari and held that relevant guidelines commentary is
authoritative and binding. Stinson v. United States, 508 U.S. 36,
113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (Stinson III). On remand,
we held that the guidelines amendment applied retroactively to
Stinson's sentence. United States v. Stinson, 30 F.3d 121 (11th
Cir.1994) (Stinson IV). Consequently, we vacated Stinson's
sentence and remanded to the district court for resentencing. Id.
Stinson was resentenced in March 1995. The district court
granted the Government's motion to depart upward three offense
levels. This departure established a guidelines range of 292-365
months, an increase from the 210-262 base range. The district
court sentenced Stinson to 365 months plus a consecutive 60 month
term to be followed by five years of supervised release—the same
custody sentence Stinson received at his original sentencing.
Stinson appeals his sentence.
II. Issue on Appeal and Standard of Review
In this appeal, we must decide whether it was permissible for
the district court to depart upward in Stinson's resentencing,
following vacation of the original sentence, although the original
sentencing court declined to depart upward.1
This court reviews the legality of a criminal sentence,
including an order of restitution, de novo. United States v.
1
Stinson also contends that the district court erred in
ordering the payment of restitution because there was no
evidence, and the district court did not find, that Stinson was
able to pay restitution. Stinson waived this objection by
failure to assert it at sentencing. See United States v. Jones,
899 F.2d 1097, 1103 (11th Cir.), cert. denied, 498 U.S. 906, 111
S.Ct. 275, 112 L.Ed.2d 230 (1990). Stinson also challenges that
aspect of the written judgment and commitment order that
authroizes the Probation Office to set the amount of monthly
restitution payments during supervised release. This challenge
is foreclosed by our decision in United States v. Lombardo, 35
F.3d 526, 528 n. 2 (11th Cir.1994).
Cobbs, 967 F.2d 1555, 1556 (11th Cir.1992).
III. Contentions of the Parties
Stinson contends that the district court was barred from
considering an upward departure at his resentencing. He asserts
that, because the issue of upward departure was litigated at his
original sentencing, the principle of the law of the case, the
Double Jeopardy Clause, and the Due Process Clause prevent the
resentencing court from revisiting that issue. Moreover, Stinson
claims that the Government waived its ability to seek an upward
departure at resentencing by not appealing the denial in the
original sentencing.
The Government contends that, because the original sentence
was vacated, the resentencing court was free to consider the issue
of upward departure. The Government argues that the principle of
law of the case, the Double Jeopardy Clause, and the Due Process
Clause do not prevent this reconsideration. In addition, the
Government maintains that it did not waive its right to seek an
upward departure at resentencing.
IV. Discussion
Whether the resentencing court was permitted to consider an
upward departure turns on the effect of our order to vacate
Stinson's original sentence. A criminal sentence is a package of
sanctions that the district court utilizes to effectuate its
sentencing intent consistent with the Sentencing Guidelines. See
United States v. Jackson, 923 F.2d 1494, 1499 n. 5 (11th Cir.1991).
Under this holistic approach, when a criminal sentence is vacated,
it becomes void in its entirety; the sentence—including any
enhancements—has "been wholly nullified and the slate wiped clean."
United States v. Cochran, 883 F.2d 1012, 1017 (11th Cir.1989)
(quoting North Carolina v. Pearce, 395 U.S. 711, 721, 89 S.Ct.
2072, 2078, 23 L.Ed.2d 656 (1969)). Consequently, when a sentence
is vacated and the case is remanded for resentencing, the district
court is free to reconstruct the sentence utilizing any of the
sentence components. Id. See also United States v. Jackson, 923
F.2d 1494 (11th Cir.1991); United States v. Lail, 814 F.2d 1529
(11th Cir.1987). If this were not the effect of our vacatur, we
would have removed the illegal portion of the sentence and simply
recalculated the sentence, instead of remanding to the district
court for a time-consuming and expensive hearing.
The doctrine of the law of the case does not change this
result. Under the law of the case doctrine, both the district
court and the court of appeals are bound by findings of fact and
conclusions of law made by the court of appeals in a prior appeal
of the same case unless (1) a subsequent trial produces
substantially different evidence, (2) controlling authority has
since made a contrary decision of law applicable to that issue, or
(3) the prior decision was clearly erroneous and would work
manifest injustice. United States v. Robinson, 690 F.2d 869 (11th
Cir.1982). There is some question as to whether the law of the
case doctrine applies to conclusions of the trial court. See,
e.g., United States v. Williams, 728 F.2d 1402, 1406 (11th
Cir.1984). However, because of the very nature of an order to
vacate, we need not reach that issue here. Even if the district
court's original sentence was, at the time, the law of the case,
that sentence was wiped away by the vacatur, and the district court
was free to consider the issue of upward departure in Stinson's
resentencing.
In addition, the Double Jeopardy Clause of the Fifth
Amendment is not implicated in this case. When Stinson appealed
his original sentence, he voluntarily requested that the sentence
be nullified, thereby defeating any subsequent Double Jeopardy
claim. Cochran, 883 F.2d at 1017 ("[A]ny expectation of finality
in a sentence is wholly absent where, as here, the defendant
requests that his prior sentences be nullified.... "[T]he Double
Jeopardy Clause, which guards against Government oppression, does
not relieve a defendant from the consequences of his voluntary
choice.' ") (citations omitted).
Stinson contends that the Government waived its right to seek
an upward departure at resentencing by not appealing the denial of
departure at the original sentencing. This contention is meritless
for two reasons. First, consistent with our holistic approach to
sentencing, once a criminal sentence is vacated, the sentence and
any consequences that flow from that sentence are totally wiped
away. Cochran, 883 F.2d at 1017. In addition, under 18 U.S.C. §
3742(b)(3), the Government is authorized to appeal only a downward
departure from the guidelines range. Thus, the denial of the
Government's upward departure motion was not an issue that the
Government could have raised on appeal.
As an overarching concern, resentencing also may implicate
the Due Process Clause of the Fifth Amendment. Pearce, 395 U.S.
711, 89 S.Ct. 2072. However, Due Process is implicated only if
"after the vacatur of a defendant's sentences, the district court
imposes a harsher punishment." Cochran, 883 F.2d at 1017. Since
the resentencing court imposed on Stinson a term of incarceration
identical to his original term, Due Process is not implicated
here.2
For the above reasons, we hold that the district court
properly considered the issue of upward departure at Stinson's
resentencing.
AFFIRMED.
2
Stinson's counsel suggested at oral argument that the
imposition of restitution made Stinson's present sentence harsher
than his original sentence, thereby implicating the Due Process
Clause. We need not reach this issue; Stinson abandoned that
argument by not raising it in his brief. Allstate Ins. Co. v.
Swann, 27 F.3d 1539, 1542 (11th Cir.1994) ("Issues that clearly
are not designated in the initial brief ordinarily are considered
abandoned.").