Revised, January 27, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41423
UNITES STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMMIE HASS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas, Tyler Division
December 29, 1999
Before KING, Chief Judge, JONES, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
The issue before us is whether the district court on remand erred when it precluded the
appellant, Tommie Hass (“Hass”), from raising the issue of drug quantity which he failed to raise
during his initial appeal. For the reasons set forth below, we affirm the district court’s ruling and find
that Hass was foreclosed from challenging drug quantity at resentencing.
FACTUAL AND PROCEDURAL HISTORY
Hass was convicted of conspiring to manufacture and distribute methamphetamine in violation
of 21 U.S.C. § 846. In the Presentence Investigation Report (“PSR”) prepared for Hass’
sentencing, the probation officer concluded that Hass and his co-conspirators possessed at least 26.8
kilograms of methamphetamine during the course of this conspiracy. The PSR stated that this amount
of methamphetamine attributed to Hass was a “very conservative estimate” of what he actually
distributed. Hass filed an extensive memorandum detailing his objections to the PSR which included:
1) the possible imposition of a life sentence, 2) the calculation of drug quantities attributed to him,
and 3) the assessment of his criminal history. The government filed a response to Hass’ objections,
including a response to Hass’ claim that the drug quantity attributed to Hass had been wrongly
calculated.
At sentencing, the district court heard arguments from the government and Hass regarding
the PSR’s recommendation that Hass be sentenced to a life sentence under 21 U.S.C. § 841(b)(1)(a)
(“three strikes provision”) because he had committed two prior felonies. The district court also found
that Hass’s objections to drug quantity, and computation of his criminal history were without merit.
Following the arguments by both counsel on application of the three strikes provision, the district
court adopted the PSR’s findings.
In his initial appeal to this court Hass argued that the life sentence based on the three strikes
provision was based on the erroneous finding that he had two final felony convictions. We upheld
Hass’ conviction in, United States v. Hass, 150 F.3d 443 (5th Cir.1998). However, we vacated the
life sentence imposed on him under the three strikes provision. We found that Hass was not eligible
for a life sentence under the three strikes provision because his two prior convictions were not final
at the time the present violations were committed. Id. at 450. This court then remanded the case for
resentencing. During his initial appeal to this court Hass di d not put forth the issue of the drug
quantities attributed to him in the original PSR.
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On remand, the case was assigned to a new judge for resentencing. At resentencing Hass
argued that the quantity of drugs attributed to him in the PSR was too high. The district court
declined to address this drug quantity argument. The district court concluded that the only issue on
remand from this court was to resentence Hass without application of the three strikes provision.
Thus, the district court adopted the findings on drug quantity from the original PSR, and enhanced
Hass’s sentence based on these findings. Hass was sentenced to 240 months imprisonment and 5
years supervised release.
DISCUSSION
Generally, review of a sentence is confined to determining whether a sentence was imposed
in violation of law, as a result of the incorrect application of the Sentencing Guidelines. See United
States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994). However, the issue before us is not whether the
district court applied the guidelines correctly, but whether the district court erred when it denied Hass
an evidentiary hearing on drug quantity. We review the denial of an evidentiary hearing for abuse of
discretion. United States v. Henderson, 19 F.3d 917, 927 (5th Cir.), cert. denied,--- U.S. --- , 115
S.Ct. 207, 130 L.Ed.2d 137 (1994).
Hass argues that the district court erred when it failed to hear his claim regarding the quantity
of drugs attributable to him for sentencing purposes. Specifically, he argues that because his first
appeal was from the district court’s imposition of a life sentence based on the three strikes provision
the issue regarding drug quantity was irrelevant, and he had no incentive to raise it. According to
Hass, the issue o f drug quantity only became relevant after we found that the district court had
erroneously sentenced him under the three strikes provision, and remanded for resentencing. The
government counters that the district court correctly precluded Hass from raising the drug quantity
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issue on remand because Hass had an opportunity to raise the issue in his initial appeal, but declined
to do so. Thus, the government asserts that Hass was confined to raising only those issues which
arose from the scope of our previous remand order. After a careful review of the record and our
circuit’s precedent, we agree with the government’s position.
The present case is subject to this court’s ruling in United States v. Marmolejo, 139 F.3d 528
(5th Cir.1998) (“Marmolejo II”). In that case, Marmolejo was found guilty of possession with intent
to distribute cocaine and marihuana, conspiracy to launder monetary instruments, and accepting
bribes as a public official. See Marmolejo II, 139 F.3d at 529. The PSR recommended a base offense
level of 38, and base level enhancements for: 1) use of a firearm during the transport of drugs, 2)
abuse of his position of public trust as an Immigration and Naturalization services agent, and 3)
obstruction of justice. See Id. Marmolejo objected to the enhancements based on possession of a
firearm and obstruction of justice. Id. The district court declined to enhance Marmolejo’s sentence
for possession of a firearm, and reduced his sentence for acceptance of responsibility and minor
participation. Id. However, the district court did enhance the sentence for obstruction of justice and
abuse of position. Id.
Both the government and Marmolejo appealed the district court’s judgment. Marmolejo only
challenged the sufficiency of the evidence for his convictions. Id. The government appealed the
district court’s failure to enhance Marmolejo’s sentence for possession of a firearm, and the
reduction of Marmolejo’s sentence for acceptance of responsibility and minor participation. Id.
Marmolejo did not raise on appeal the issue of the district court’s sentence enhancement for
obstruction of justice. This court upheld Marmolejo’s conviction. However, we found in favor of
the government’s position that the district court had erred by not imposing a sentence enhancement
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for possession of a firearm. See United States v. Marmolejo, 106 F.3d 1213 (5th Cir. 1997). We
vacated Marmolejo’s sentence and remanded it to district court for resentencing consistent with our
opinion.
At resentencing, Marmolejo sought to introduce evidence on the obstruction of justice issue.
The district court declined to hear the evidence because the district court’s original finding on that
issue had not been raised on appeal.1 Marmolejo II, 139 F.3d at 530. Marmolejo appealed the
district court’s refusal to hear the obstruction of justice evidence. He argued that a resentencing
hearing should be conducted de novo to hear new evidence on all sentencing issues. Id. We
expressly rejected this argument and held that the district court properly refused to hear new evidence
at resentencing because the scope of this court’s remand order was limited. 2 Clarifying the scope of
this court’s remand order we stated:
The only issues on remand properly before the district court are those
which arise 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
1
Marmolejo also sought to introduce evidence on acceptance of responsibility, which the
district judge declined to hear. The court found that additional evidence on the issue would not
change the matter, since statements made by Marmolejo at sentencing as well as existing evidence
was enough to find that acceptance of responsibility was not appropriate. See Marmolejo II, 139 F.3d
at 529-530.
2
As we recognized in Marmolejo II, the scope of a remand for resentencing has caused a
significant circuit split. Under the majority view, sentencing following remand should be conducted
de novo, and thus a district judge is not limited to reviewing only those issues related to the remand
order. See Marmolejo II, 139 F.3d at 530. (citing 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. Atechoriva, 69 F.3d
679 (6th Cir. 1996); United States v. Ponce, 51 F.3d 820 (9th cir. 1995); United States v. Cornelius,
968 F.2d 703 (8th Cir. 1992). By contrast, under the minority view, “only those discrete, particular
issues identified by the appeals court on remand are properly before the resentencing court,” i.e., a
waiver approach. See id. (citing United States v. Whren, 111 F.3d 956 (D.C. Cir. 1997), United
States v. Parker, 101 F.3d 527 (7th Cir. 1996).
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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.
Marmolejo II, 139 F.3d at 531.
The facts of the present case are strikingly similar to those in Marmolejo II. In his original
objections to the PSR, Hass specifically objected to the drug quantities attributable to him. At the
original sentencing the district court stated that it had considered Hass’s objection to the drug
quantities and found these arguments to be without merit, and refused to reduce Hass’s base offense
level. Hass was obviously aware of this adverse ruling , yet did not challenge the district court’s drug
quantity finding during his initial appeal. As a result, although the drug quantity issue was fully
presented and reviewed by the district court this court’s decision only considered Hass’s arguments
on the three strikes provision. Our remand order only directed the district court to resentence Hass
without applying the three strikes provision. Therefore, the district court on remand properly
followed our Marmolejo II instructions to only address “issues arising out of the correction of the
sentence ordered by [the appellate] court.” Marmolejo II, 139 F.2d at 531.
Hass specifically contends that he did not have an incentive to raise the drug quantity issue
in his initial appeal because t he application of the three strikes provision made drug quantity
irrelevant. Hass’s argument is similar to an argument raised by the defendant in United States v.
Ticchiarelli, 171 F.3d 24, 30 (1st Cir. 1999). In Ticchiarelli, the defendant claimed that he did not
challenge drug quantity at his original sentencing because even if the drug quantity had been reduced
it would not have affected the length of his sentence. The defendants original sentence was vacated
and remanded to the district court for resentencing. Therefore, at resentencing the defendant sought
to introduce evidence of drug quantity. The First Circuit concluded that whether a defendant waived
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an issue for consideration at resentencing is determined by whether the defendant had an incentive
to raise that issue in the prior proceedings. Id. at 33.
However, the record in the present case is different from the circumstances in Ticchiarelli.
In the present case, Hass raised the issue of drug quantity during his original sentencing. Hass simply
failed to pursue this issue on appeal. Therefore, Hass cannot claim that he felt the drug quantity issue
was irrelevant because he submitted objections to these findings at the district court level. A
defendant cannot know which appellate argument might be successful, therefore each contested issue
must be appealed. Countless criminal appeals are determined by our court which encompass multiple
bases of relief claimed by appellants. Hass’s circumstance is no different. Because Hass had another
appealable issue which turned out to be successful, does not mean that the issue of drug quantity was
not germane and appealable. Therefore, we reiterate our conclusion from Marmolejo II that all issues
not arising out of the remand order which could have been brought in the original appeal are not
proper for reconsideration by the district court below at resentencing. Marmolejo II, 139 F.3d at 531.
CONCLUSION
We find that our holding in Marmolejo II is controlling, and that the district court properly
precluded Hass from raising the drug quantity issue on remand. Accordingly, we AFFIRM the
district court’s ruling.
AFFIRMED.
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