United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 9, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 06-30242
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant
v.
FRANCISCO D. PINEIRO,
ALSO KNOWN AS, FRANK PINEIRO,
Defendant-Appellee
----------------------
Appeal from the
United States District Court
for the Western District of Louisiana
----------------------
Before KING, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:
This appeal arises out of the post-Booker resentencing of
Defendant-Appellee Francisco D. Pineiro.1 The facts and
circumstances that frame this third appeal of Pineiro’s sentence
are adequately captured in United States v. Pineiro, 377 F.3d 464
(5th Cir. 2004) (“Pineiro I”), and United States v. Pineiro, 410
F.3d 282 (5th Cir. 2005) (“Pineiro II”). For the sake of brevity,
1
See United States v. Booker, 543 U.S. 220 (2005).
therefore, we reiterate only those facts that are relevant to this
appeal.
I. FACTS AND PROCEEDINGS
In February 2002, Pineiro was indicted on one count of
conspiracy to distribute 100 kilograms or more of marijuana and 50
grams or more of cocaine powder in violation of United States Code,
title 21, section 846, and on two counts of possession with intent
to distribute and aiding and abetting the possession with intent to
distribute marijuana in violation of United States Code, title 21,
section 841(a)(1) and title 18, section 2. At the conclusion of
Pineiro’s jury trial in October 2002, the jury returned a guilty
verdict on all three counts. In its response to a special drug-
quantity interrogatory, the jury found Pineiro guilty of conspiring
to distribute less than 50 kilograms of marijuana and 50 grams or
less of cocaine.
In December 2002, a probation officer issued the customary
Presentence Investigation Report (“PSR”). The PSR concluded that
Pineiro was responsible for 453.6 kilograms of marijuana and
1,048.95 grams of cocaine.2 This produced a base offense level of
2
In the PSR, the probation officer noted the lesser amount
of drugs for which Pineiro was convicted, but continued on in the
related offense conduct section to find that Pineiro was
responsible for the greater amount of drugs.
2
28. The PSR recommended that Pineiro receive a four-level sentence
enhancement for his role as a leader or organizer of the
conspiracy. This produced a total offense level of 32. And, as
Pineiro had no prior convictions, his criminal history category was
I. The combination of Pineiro’s total offense level of 32 and
criminal history category of I resulted in a guideline sentencing
range of 121 to 151 months imprisonment.
Pineiro made several objections to the PSR, two of which were
relevant to Pineiro I. First, in reliance on Apprendi v. New
Jersey,3 he asserted that he should be sentenced on the basis of
the drug quantity found by the jury, not the quantity set forth in
the PSR. Second, he contended that there was insufficient evidence
offered at trial to support his organizer-leader enhancement.
At Pineiro’s sentencing hearing in April 2003, the district
court overruled his objections and sentenced him to 121 months
imprisonment on Count 1 and 60 months imprisonment on each of
Counts 2 and 3, with all sentences to run concurrently. Pineiro
timely filed a notice of appeal.
While the first appeal was pending in this court, the Supreme
Court decided Blakely v. Washington.4 After supplemental briefing
on whether Blakely applied to sentencing under the federal
3
520 U.S. 466 (2000).
4
524 U.S. 296 (2004).
3
sentencing guidelines, and after oral argument in this court on all
issues, we affirmed Pineiro’s sentence, holding that Blakely did
not affect the federal sentencing guidelines and that the district
court’s non-jury drug quantity finding and organizer-leader
enhancement were not erroneous.5
Pineiro then filed a petition for certiorari in the Supreme
Court. After issuing its opinions in Booker, the Court granted
Pineiro certiorari, vacated our judgment, and remanded the matter
to us for further consideration in light of Booker.6
On remand from the Court, we held in Pineiro II that the
prosecution could not meet its burden of showing beyond a
reasonable doubt that the district court would have imposed the
same sentence under an advisory guideline. We concluded that in
accordance with Booker, Pineiro was entitled to resentencing, so we
remanded the case to the district court for resentencing.7
On remand from us, the district judge who had presided over
Pineiro’s trial and sentencing entered an order transferring the
case to another district judge. Prior to being resentenced by the
second judge, Pineiro again urged the district court to sentence
him based on the drug quantities found by the jury and not to apply
5
Pineiro I, 377 F.3d at 473-75.
6
Pineiro v. United States, 543 U.S. 1101 (2005).
7
Pineiro II, 410 F.3d at 285-87.
4
the four-level organizer-leader enhancement. Pineiro urged in the
alternative that if these objections were overruled, the court
should depart downward from the advisory range.
At Pineiro’s resentencing in early 2006, the district court
elected to re-visit Pineiro’s original guideline sentencing range
for the two reasons originally and again advocated by Pineiro ——
the non-jury drug quantity findings and the organizer-leader
enhancement. First, based on Apprendi and Booker, the district
court accepted Pineiro’s drug quantity argument and concluded that
it was bound by the jury’s determination as to the lesser quantity
of drugs for which Pineiro was responsible. Second, as to the
organizer-leader enhancement, the district court rejected Pineiro’s
contention. Accordingly, the district court reduced Pineiro’s
total offense level to 22, reflecting its use of the quantity of
drugs found in the special jury interrogatory and its application
of the organizer-leader enhancement. This produced an advisory
range of 63 to 78 months imprisonment. The court then imposed a
sentence of 63 months imprisonment on Count 1 and 60 months
imprisonment on each of Counts 2 and 3, all sentences to run
concurrently. The government timely filed a notice of appeal,
which brings this matter before us today.
5
II. LAW AND ANALYSIS
A. Standard of Review
In this appeal following remand in Pineiro II, the government
argues that the district court’s recalculation of Pineiro’s
sentencing guideline range violated the mandate rule —— a facet of
the law-of-the-case doctrine. We review de novo a district court’s
interpretation of our remand order, including whether the law-of-
the-case doctrine or mandate rule forecloses any of the district
court’s actions on remand.8
Pineiro contends that we should review the government’s appeal
under a plain error standard, not de novo. He argues that, because
the government failed to object to the district court’s
recalculation at the time of resentencing, we must conduct our
review under the more deferential plain error standard. This
argument fails.
In determining the sufficiency of objections to preserve
issues for appeal, we apply “‘the general principle that an
objection which is ample and timely to bring the alleged . . .
error to the attention of the trial court and enable it to take
appropriate corrective action is sufficient to . . . preserve the
8
United States v. Hamilton, 440 F.3d 693, 697 (5th Cir.
2006).
6
claim for review.’”9 We have never required a party to express its
objection in minute detail or ultra-precise terms.10
Despite never explicitly mentioning the law-of-the-case
doctrine or the mandate rule, the government made clear at the
resentencing hearing its objection to the district court’s
revisiting and recalculating Pineiro’s total offense level. For
example, counsel for the government made the following statements:
(1) “I don’t think you can throw out the guideline range. The
calculation begins —— I think the purpose is that there is a
guideline range and those —— that information, the drug quantity
was properly calculated in that guideline range. I think the Fifth
Circuit has spoke [sic] to that;” (2) “I think now —— obviously now
it is not mandatory, but it certainly doesn’t negate Probation
calculating that amount for relevant conduct purposes;” (3) “the
guideline issues are no longer mandatory. They’re advisory as in
any case. The Defense put on evidence. I mean, the Defense
objected with [the original district judge] and he rejected it. He
rejected their argument then, and in saying that, mandatory or not,
he believed it. . . . [E]ven though it was mandatory and not
9
United States v. Williams, 985 F.2d 749, 755 (5th Cir.
1993) (quoting Osborne v. Ohio, 495 U.S. 103, 125 (1990)).
10
See, e.g., United States v. Saldana, 427 F.3d 298, 314
n.67 (5th Cir. 2005); United States v. Akpan, 407 F.3d 360, 375-
76 (5th Cir. 2005); United States v. Pankhurst, 118 F.3d 345,
356-57 (5th Cir. 1997).
7
advisory, I think that’s the issue now, not that the guideline
range was inappropriate to calculate it;” (4) “Now those guideline
range [sic], the Government submits, are still appropriate, but
this Court is well aware they’re advisory only. That’s an issue
that exist [sic] here post-Booker;” (5) “So I think, again, the
issue is not to the calculation aspect of it, it’s simply an issue
whether the Court will stay within the guideline range or find a
reason to deviate from them, because they’re now advisory, giving
the Court the opportunity to go below or above that range;” and (6)
“Whether or not [the original district judge] felt [the sentencing
guideline range] was mandatory or not, I think it’s why we’re
here.” These statements, along with others, were sufficient to
preserve the government’s objection implicating the mandate rule
and entitles it to a de novo review.
B. Applicable Law
The mandate rule, which is a corollary or specific application
of the law of the case doctrine,11 prohibits a district court on
remand from reexamining an issue of law or fact previously decided
on appeal and not resubmitted to the trial court on remand.12 This
prohibition covers issues decided both expressly and by necessary
11
United States v. Lee, 358 F.3d 315, 320-21 (5th Cir.
2004).
12
United States v. Matthews, 312 F.3d 652, 657 (5th Cir.
2002).
8
implication, and reflects the jurisprudential policy that once an
issue is litigated and decided, “‘that should be the end of the
matter.’”13 This rule is essential to the orderly administration
of justice, as it is aimed at preventing obstinate litigants from
repeatedly reasserting the same arguments and at discouraging
opportunistic litigants from appealing repeatedly in the hope of
acquiring a more favorable appellate panel.14
When on remand the district court assays to implement the
mandate, it must proceed within the letter and spirit of the
mandate by taking into account the appeals court’s opinion and the
circumstances it embraces.15 In the context of remands for
resentencing, this circuit employs a restrictive approach: The
resentencing court may consider only that which we direct —— no
more, no less.16 “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
13
Lee, 358 F.3d at 320 (citing Crowe v. Smith, 261 F.3d
558, 562 (5th Cir. 2002), and quoting United States v. United
States Smelting Ref. & Mining Co., 339 U.S. 186, 198 (1950)).
14
Matthews, 312 F.3d at 657.
15
Sobley v. Southern Natural Gas Co., 302 F.3d 325, 333
(5th Cir. 2002).
16
United States v. Marmolejo, 139 F.3d 528, 530-31 (5th
Cir. 1998).
9
reconsideration by the district court below.”17
Despite its importance, the mandate rule is a discretionary
device and not immutable.18 Three exceptions to the imposition of
this rule are recognized: (1) Introduction of evidence at a
subsequent trial that is substantially different; (2) an
intervening change in controlling authority; and (3) a
determination that the earlier decision was clearly erroneous and
would work a manifest injustice.19
C. Merits
In our de novo review, we address the substance of this
appeal. In Pineiro I, Pineiro sought review of the district
court’s two guideline rulings —— the non-jury drug quantity finding
and the organizer-leader enhancement. After concluding that
Blakely was not applicable to the federal guidelines, we affirmed
both the drug quantity and organizer-leader determinations.
As to the drug quantity calculation, we noted in Pineiro I
that “the Guidelines direct the judge to impose a sentence based
not only on the conduct reflected in the verdict but also on other
17
Id. at 531.
18
United States v. Becerra, 155 F.3d 740, 753 (5th Cir.
1998).
19
Id. at 752-53.
10
related conduct.”20 We then concluded that the district court
correctly calculated the quantity of drugs “notwithstanding the
fact that the jury specifically acquitted Pineiro of the large drug
quantities later found by the judge.”21 As to the organizer-leader
determination, we similarly concluded that there was no clear error
in the district court’s application of this enhancement to
Pineiro.22
After granting certiorari, the Supreme Court vacated our
decision in Pineiro I and remanded “for further consideration in
light of United States v. Booker.”23 Thus Booker did not work a
change in the law subsequent to Pineiro II; that holding was a
preceeding change vis-à-vis Pineiro II.
Given the scope of the Court’s remand, we did not address any
of Pineiro’s earlier attacks on his guideline calculation, but
instead, limited our review and thereby limited the scope of our
eventual mandate to whether resentencing was required under the
20
Pineiro I, 377 F.3d at 474 (citing U.S.S.G. § 1B1.3, and
Edwards v. United States, 523 U.S. 511, 513-15 (1998)) (emphasis
added).
21
Id. (citing United States v. Watts, 519 U.S. 148, 152-57
(1997)).
22
Id. at 475.
23
Pineiro, 543 U.S. at 1101 (reporter citations omitted).
11
post-Booker advisory guideline regime.24 In conducting this review,
the only issue we determined was that the government was not able
to demonstrate that any Booker error was harmless beyond a
reasonable doubt. Consequently, we remanded this matter to the
district court solely for “resentencing in accordance with
Booker.”25
By recalculating Pineiro’s guideline range, the district court
exceeded the scope of our mandate. Under the limits of our mandate
in Pineiro II, the district court was only to resentence Pineiro
under an advisory guideline regime, not recalculate his total
offense level; that had never been addressed or vacated on appeal.
Under both the pre- and post-Booker regimes, a jury’s verdict of
acquittal on some drug-quantity counts does not prevent the
sentencing court from considering conduct underlying the acquitted
count as long as that “related” conduct has been proved by a
preponderance of the evidence.26 Under this standard, we affirmed
the sentencing finding of (1) drug quantity for purposes of
calculating Pineiro’s offense level and (2) Pineiro’s organizer-
leader status. Neither Booker nor Pineiro II disturbed these
24
Pineiro II, 410 F.3d at 283.
25
Id. at 287.
26
United States v. Valdez, 453 F.3d 252, 264 (5th Cir.
2006); United States v. Cathey, 259 F.3d 365, 368 (5th Cir.
2001).
12
findings.
In resentencing Pineiro on remand, the district court appears
to have misapprehended Booker and our post-Booker caselaw when it
concluded that it could sentence Pineiro only on facts that were
established by either a guilty plea or jury verdict. It further
appears that the district court recalculated Pineiro’s total
offense level based on this erroneous conclusion. The district
court apparently believed it was following Booker, our post-Booker
caselaw, and our mandate; it just misconstrued the three.
Moreover, this case does not present a situation involving any
of the three exceptions to the mandate rule. There was neither a
subsequent trial nor an intervening change in controlling authority
between the issuance of our remand mandate in Pineiro II and
Pineiro’s resentencing on remand. Additionally, the decisions of
our panels in Pineiro I and Pineiro II were not clearly erroneous
and would not work a manifest injustice.
Finally, Pineiro asserts that even if the district court
erred, such error was harmless, because that court would have
imposed the same sentence even if it had not recalculated the total
offense level. There is simply nothing in the record to support
this contention. If anything, based on the district court’s
statements, it appears that the district court would not have
departed downward from the guideline range —— especially not by
13
48%, which would be an extraordinary reduction requiring
extraordinary circumstances.27
III. CONCLUSION
Based on our view of the applicable law and our extensive
review of the parties’ briefs and the record on appeal, we conclude
that the district court at resentencing exceeded the boundaries of
our mandate. Accordingly, we again vacate Pineiro’s sentence and
remand for resentencing in a manner consistent with this opinion
and the Supreme Court’s opinion in Booker, and within the limits of
our mandate in Pineiro II.
VACATED AND REMANDED.
27
United States v. Desselle, 450 F.3d 179, 183 (5th Cir.
2006).
14