IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-10131
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC ANTHONY THOMAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(5:93-CR-13-01)
(August 22, 1995)
Before GARWOOD, WIENER and PARKER, Circuit Judges.
WIENER, Circuit Judge:*
Defendant-Appellant Eric Anthony Thomas appeals the sentence
imposed by the district court on remand from this court of Thomas'
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
first appeal in this matter.1 In Thomas I, a panel of this court
determined that Thomas' original sentencing violated the Double
Jeopardy Clause of the Fifth Amendment, relying on United States v.
Marroquin2 and Ray v. United States,3 and remanded the case to the
district court for resentencing. In so doing, the Thomas I panel
stated that the government will elect "under which of the three
convictions Thomas should be sentenced."4 Again, in its
conclusion, the panel in Thomas I stated that the matter was
remanded to the district court for resentencing on "the count"
elected by the government.5
On remand, the government elected to proceed to sentencing on
Counts 2 and 3 of Thomas' indictment. The district court ordered
the government to file an "Amended Election of Count" because the
government's "Election of Count" did not comply with our mandate.
The government nevertheless argued that its election to proceed on
Counts 2 and 3 was proper and requested a hearing on the matter.
After conducting such a hearing, the district court allowed the
government to proceed to sentencing on Counts 2 and 3, after which
Thomas was sentenced on those counts. This appeal followed.
At the hearing in question the government arguedSQand the
1
United States v. Thomas, No. 93-1720 (5th Cir. Nov. 15,
1994) (copy attached) (Thomas I).
2
885 F.2d 1240 (5th Cir. 1989), cert. denied, 494 U.S. 1079
(1990).
3
481 U.S. 736 (1987).
4
Thomas, slip op. at 4.
5
Id. at 11.
2
district court acceptedSQthat our statement in Thomas I directing
the government to "elect a count" should have been worded "counts,"
characterizing the singular statement in the opinion as a
ministerial error. Thomas, of course, contended that the wording
of our opinion in Thomas I was "clear in permitting the election as
to a single count." The issue before this panel in the instant
appeal is not what the Thomas I panel could have done but what it
did, for this panel is bound by stare decisis and the law of the
case doctrine to follow Thomas I.
Not once but twice the Thomas I opinion employed plain, clear
and unequivocal language of the singular in remanding the case for
resentencing. No motion was filed by either party for correction
or clarification. Like this panel, the government and the district
court are bound by the clear and unambiguous wording of Thomas I,
which instructed the government to select a single conviction upon
which to proceed at resentencing. The government and the district
court failed to comply, however, leaving us no choice but to remand
again for resentencing.
For the foregoing reasons, we again vacate Thomas' sentence
and remand for resentencing, at which time "the government will
elect under which [one and only one] of the three convictions
Thomas should be sentenced."6 And the district court shall
resentence Thomas on the single conviction selected by the
government.
VACATED and REMANDED for resentencing.
6
Id. at 4.
3