IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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NO. 97-20378
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UNITED STATES OF AMERICA,
Plaintiff-Appellee
VS.
REYNALDO MARMOLEJO
Defendant-Appellant
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Appeals from the United States District Court
for the Southern District of Texas
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April 21, 1998
Before JONES and SMITH, Circuit Judges, and SHAW,* District Judge.
JOHN M. SHAW, District Judge:
Reynaldo Marmolejo challenges his resentencing following
remand, arguing that the district court erred in refusing to permit
him to offer testimony on questions of acceptance of responsibility
and obstruction of justice. We affirm.
I.
Reynaldo Marmolejo was charged in a superseding indictment
with conspiracy to possess with intent to distribute cocaine and
*
District Judge of the Western District of Louisiana,
sitting by designation.
marijuana, conspiracy to launder monetary instruments, and
accepting bribes as a public official. A jury found Marmolejo
guilty of all three counts.
The presentence investigation report found that Marmolejo had
transported 200 kilograms of cocaine, setting a base offense level
of 38. The report recommended increasing the base level because
Marmolejo carried a gun during the transportation of drugs, abused
his position of public trust as an agent of the Immigration and
Naturalization Service, and obstructed justice by trying to
persuade a co-defendant and fellow INS agent to lie and feign
mental illness to suppress a prior confession.
Marmolejo objected to the enhancements based on obstruction of
justice and possession of a firearm. The defendant further argued
that he was entitled to a reduction in the base offense level
because he admitted his involvement in the crimes to the probation
officer and he was only a minor participant in the conspiracy.
At the defendant's original sentencing, the district judge
declined to enhance Marmolejo's sentence for possession of a
firearm because he found that the defendant did not display or
brandish the firearm, and reduced the defendant's sentence for
acceptance of responsibility and minor participation. The district
judge further found that Marmolejo obstructed justice and abused
his position of trust and enhanced his sentence based on those
provisions.
The defendant appealed his convictions on the basis that they
were not supported by sufficient evidence. The Government cross
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appealed the sentence arguing that the district court erred in
failing to enhance Marmolejo's sentence for possession of a firearm
and for reducing the defendant's sentence upon a finding of
acceptance of responsibility and being a minor participant.
In the first appeal, this court rejected the defendant's
contentions and found merit in the Government's appeal, vacating
Marmolejo's sentence and remanding it to the district court for
resentencing consistent with its opinion. United States v.
Marmolejo, 106 F.3d 1213 (5th Cir. 1997).
Specifically, this court held that Marmolejo had failed to
carry his burden of showing that it was clearly improbable that the
weapon he carried in connection with his duties as an INS agent was
not connected with the drug-trafficking crime. Because Marmolejo
had put the Government to its burden of proof by going to trial, by
denying the essential factual element of guilt, and because
Marmolejo's sentence had been enhanced for obstruction of justice,
the court held that the district court had erred in adjusting
Marmolejo's offense level downward for acceptance of
responsibility. Finally, this court held that the district court
erred in reducing Marmolejo's offense level as a minor participant
under USSG § 3B1.2(b).
At the resentencing hearing after remand, the defendant sought
to present evidence on the questions of acceptance of
responsibility and obstruction of justice. Marmolejo also stated
that he wanted to present evidence to demonstrate his minor role in
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the offense. He proffered his own testimony, in which he claimed
he had not encouraged his co-defendant to feign mental illness.
The district court refused to hear evidence on the question of
obstruction of justice because its original finding on that issue
had not been challenged by either party on appeal. Also, the
district court found the additional evidence offered on
the question of acceptance of responsibility would not
make a difference with the court because of statements
previously made by the defendant to the court during his
initial sentencing. The district judge stated that
there was enough evidence standing alone to find
acceptance of responsibility was not appropriate.
II.
The sole issue on appeal before this court involves
the determination of the scope of this court's remand
order for resentencing.
Marmolejo argues that the district judge erred at
the resentencing hearing following remand when he
refused to hear new evidence presented on the issue of
acceptance of responsibility and obstruction of justice.
The defendant asserts that a resentencing hearing should
be de novo unless the court of appeals expressly and
specifically limits the scope of the remand.
Marmolejo submits that because this court did not
specifically limit the scope of its remand order, the
resentencing following remand should be de novo,
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requiring the district court to hear all evidence
offered regarding the defendant's sentencing regardless
of whether those issues were challenged on appeal.
The issue involving the scope of a remand for
resentencing has caused a significant split in the
circuits. The appellant has cited the majority view
among the circuits that sentencing following remand
should be conducted de novo and is not limited only to
the reasons for the remand. United States v. Smith, 116
F.3d 857 (10th Cir. 1997); United States v. Jennings, 83
F.3d 145 (6th Cir. 1996); United States v. Atehortva,
69 F.3d 679 (2d Cir. 1995); United States v. Ponce, 51
F.3d 820 (9th Cir. 1995); United States v. Cornelius,
968 F.2d 703 (8th Cir. 1992).
The general proposition regarding the scope of this
court's remand order has never been addressed entirely
by this court. This court has held that once an issue
is remanded for resentencing, all new matter relevant to
that issue appealed, reversed, and remanded, may be
taken into consideration by the resentencing court.
In United States v. Kinder, 980 F.2d 961 (5th Cir.
1992), the court stated:
It is a fundamental principle of
sentencing that a district court may
conduct an inquiry broad in scope,
largely unlimited either as to the
kind of information it may consider,
or the source from which such
information may come. The scope of a
remand for resentencing includes new
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relevant factors proper in a de novo
review. In the interest of truth and
fair sentencing a court should be able
on a sentence remand to take new
matters into account on behalf of
either the government or the
defendant.
Although Kinder grants a district court wide
discretion in conducting an inquiry into the underlying
facts and evidence necessary in determining a
defendant's sentence, the holding is limited to the
gathering of relevant facts and evidence on the specific
and particular issues heard by the appeals court and
remanded for resentencing. In this appeal, we are asked
to decide whether Marmolejo, whose case we have remanded
to the district court for resentencing may there raise
for the first time issues that are unrelated to the
reason for the remand.
The minority view among the circuits states that
only those discrete, particular issues identified by the
appeals court for remand are properly before the
resentencing court, adopting a waiver approach. United
States v. Whren, 111 F.3d 956 (D.C.Cir. 1997); United
States v. Parker, 101 F.3d 527 (7th Cir. 1996).
At the defendant's original sentencing, and over the
defendant's objection to the presentence investigation
report, the district court found that there existed
sufficient evidence in the record to support an
enhancement for obstruction of justice. The district
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court's ruling on the issue of Marmolejo's enhancement
for obstruction of justice was never appealed by either
the defendant or the Government, thus becoming the law
of the case. We hold that the district court correctly
refused to hear new evidence relating to Marmolejo's
sentence enhancement for obstruction of justice because
that determination was not before the district court on
remand.
This court specifically rejects the proposition that
all resentencing hearings following a remand are to be
conducted de novo unless expressly limited by the court
in its order of remand. This case was remanded for
resentencing. The fact that the appellate court did not
expressly limit the scope of the remand order did not
imply that a full blown sentencing hearing was
permissible for a second time, allowing evidence on all
issues that would affect the sentencing guidelines.
As stated by the minority view, we, too, reject the
de novo approach, because such an approach merely gives
a defendant a "second bite at the apple." Whren, at
959. It serves both justice as well as judicial economy
to require a defendant to raise all relevant and
appealable issues at the original sentencing rather
than allowing a defendant to revisit issues with the
benefit of this court's opinion.
The only issues on remand properly before the
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district court are those issues arising out of the
correction of the sentence ordered by this court. In
short, the resentencing court can consider whatever this
court directs--no more, no less. 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 reconsideration by
the district court below.
On the issue of acceptance of responsibility, at
resentencing, the district court held that any evidence
offered by the defendant would not add to the court's
finding based upon the evidence already received in the
record. The court stated that there existed enough
evidence standing alone to find acceptance of
responsibility was not appropriate. The defendant
continued to minimize his involvement in the offense and
had not fully accepted responsibility for his actions.
Evidence against obstruction of justice would affect the
finding on acceptance of responsibility only if the
court made the finding solely because of the conflict
between the two provisions. Here, the court explicitly
denied the acceptance-of-responsibility reduction for
reasons unrelated to obstruction of justice. Even after
hearing the defendant's proffer, the district court
found that the additional evidence proffered still had
no effect upon his determination on the issue of
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acceptance of responsibility.
The district court's finding on the issue of
acceptance of responsibility can only be disturbed if
found to be clearly erroneous. The court below took
evidence on acceptance of responsibility at the original
sentencing, and accepted a proffer of evidence at the
second sentencing hearing. Additionally, as noted in
this court's opinion, the adjustment is ordinarily not
appropriate when the defendant insists upon his right to
trial and denies the essential elements of guilt.
Marmolejo, at 1216.
Under USSG § 3E1.1(a) a defendant must show
"recognition and affirmative acceptance of personal
responsibility for his criminal conduct." Note 2 of
USSG § 3E1.1 provides that, although a defendant may
receive this reduction even if he proceeded to trial,
the adjustment "is not intended to apply to a defendant
who puts the government to its burden of proof at trial
by denying the
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essential factual elements of guilt, is convicted, and
only then admits guilt and expresses remorse."
The district court did not refuse to hear additional
evidence on acceptance of responsibility. Rather, the
court made a finding based upon the evidence already in
the record and after the benefit of proffered evidence,
that a reduction based upon acceptance of responsibility
was not appropriate under the facts presented to the
court.
The district court's finding on the question of
acceptance of responsibility is ordinarily given great
deference on appeal because the determination involves
an assessment of credibility. We find that the court's
determination was not clearly erroneous.
Finally, Marmolejo argues that although not
expressly raised on first appeal, the question of
obstruction of justice was so intertwined with the issue
of acceptance of responsibility that the district court
could properly hear evidence on both issues. This
court's opinion reflects the close relationship between
the two issues. Marmolejo, 106 F.3d at 1217.
Although the issue of obstruction of justice
impacted the issue of defendant's acceptance of
responsibility, it did not resuscitate the issue de
novo. This relationship was discussed at some length in
this court's opinion, merely to explain the interplay of
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a defendant's obstruction with his denial of credit for
acceptance of responsibility.
Additionally, the record reflects that the district
court accepted a proffer on both issues, but found that
the evidence offered by the defendant to deny
Marmolejo's involvement in obstruction of justice would
not assist him in his request for a reduction based upon
acceptance of responsibility.
For the foregoing reasons, we affirm the judgment of
the district court.
AFFIRMED.
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