United States v. Rollow ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 27, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 06-6072
v. (D.C. No. 02-CR-08-T)
(W .D. Okla.)
SHIRLEY M AYE ROLLOW ,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.
A jury convicted Shirley Rollow of conspiring to possess and distribute a
listed chemical knowing that it would be manufactured into a controlled
substance, and of structuring transactions to evade reporting requirements in
violation of 21 U.S.C. § 841(c)(2) and 31 U.S.C. § 5324(a)(3). The convictions
stemmed from allegations that M s. Rollow was involved in an illicit scheme to
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
distribute pseudoephedrine, a precurser to methamphetamine, within the United
States. The district court sentenced M s. Rollow to 180 months’ imprisonment
followed by three years of supervised release, but a panel of this court vacated
that sentence and remanded to the district court for re-sentencing in light of the
Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). See
United States v. Rollow, 146 F. App’x 290, 294-95 (10th Cir. 2005). On remand,
the district court reduced M s. Rollow’s sentence to 160 months’ imprisonment
followed by three years of supervised release. She now appeals her sentence a
second time. W e affirm the district court’s revised sentence.
I. Background
The district court’s original sentence was based in part on the pre-sentence
investigation report (PSR). The PSR established that M s. Rollow conspired to
distribute 3,438 kilograms of pseudoephedrine, a quantity that, under the United
States Sentencing Guidelines (U SSG), carried a base offense level of 30. See
U SSG § 2D 1.11 (2000). To the base offense level, the district court added tw o
levels under USSG § 3C1.1 after finding that M s. Rollow obstructed justice by
lying under oath. The court then added another two levels under USSG
§ 3B1.1(c) because it found that M s. Rollow assumed a leadership role in the
conspiracy. Accounting for M s. Rollow’s Criminal History Category of I, the
district court determined that her sentencing range was 151 to 188 months. The
court accordingly sentenced M s. Rollow to 180 months in prison.
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W hile M s. Rollow’s appeal of her sentence was pending, the Supreme
Court issued its decision in Booker. Booker substantively held that “[a]ny fact
(other than a prior conviction) which is necessary to support a sentence exceeding
the maximum authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury beyond a reasonable
doubt.” 543 U.S. at 244. The Court went on to craft a remedy for the federal
sentencing guidelines by severing the provisions of the guidelines that made them
mandatory, thereby making the guidelines merely advisory. See id. at 245.
Applying Booker to M s. Rollow’s appeal, a panel of this court determined that her
sentence was unconstitutional because it was based on findings neither admitted
by her nor proven to a jury beyond a reasonable doubt. Rollow, 146 F. App’x at
294-95. Thus, the panel remanded the case “with direction that she be
re-sentenced in accord with Booker-Fanfan.” Id. at 295.
On remand, the district court construed the scope of the remand order as
applying only to the two sentence enhancements. After a hearing, the court
consulted the sentencing guidelines as advisory and, finding ample evidence to
sustain the two findings that M s. Rollow obstructed justice and assumed a
leadership role in the conspiracy, determined that the appropriate sentencing
range remained 151 to 188 months. The court concluded, however, that a
sentence at the low er end of the range w as more reasonable, and therefore
reduced M s. Rollow’s sentence to 160 months’ imprisonment.
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Now appearing before this court a second time, M s. Rollow contends the
district court misconstrued the scope of the remand order. Focusing on the last
phrase of the panel’s mandate, M s. Rollow argues that the language directing
“that she be re-sentenced in accord with Booker-Fanfan,” id., required the district
court to reconsider the propriety of her entire sentence rather than the two
sentence enhancements exclusively. She then goes a step further and challenges
both her base offense level as well as the sentence enhancements. She contends
her base offense level is unconstitutional because it was based on a drug quantity
that was not found by the jury; she challenges the sentence enhancements by
arguing the district court was without authority to retroactively apply the
sentencing guidelines to her case in an advisory fashion. Therefore, invoking
Booker’s substantive rule while attempting to avoid its remedial holding,
M s. Rollow concludes that her proper sentencing range is 10 to 16 months.
II. Discussion
A. Scope of Remand
W e first address M s. Rollow’s contention that the district court improperly
limited the scope of the remand order. Her argument is simply that the mandate
issued by this court vacated her entire sentence and required the district court to
completely reevaluate her sentence in light of Booker. Because M s. Rollow
preserved in the district court the allegations of error she argues on appeal, we
apply harmless error analysis to ensure that any error did not affect her
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substantial rights. See United States v. M arshall, 432 F.3d 1157, 1160 (10th Cir.
2005); Fed. R. Crim. P. 52(a).
Our analysis here is governed by the mandate rule, which is a
“discretion-guiding rule” that “generally requires trial court conformity with the
articulated appellate remand.” United States v. M oore, 83 F.3d 1231, 1234
(10th Cir. 1996). “Although a district court is bound to follow the mandate, and
the mandate controls all matters within its scope, a district court on remand is free
to pass upon any issue which was not expressly or impliedly disposed of on
appeal.” Proctor & Gamble Co. v. Haugen, 317 F.3d 1121, 1126 (10th Cir. 2003)
(internal quotation and alteration omitted). Thus, “where the appellate court has
not specifically limited the scope of the remand, the district court generally has
discretion to expand the resentencing beyond the sentencing error causing the
reversal.” United States v. Lang, 405 F.3d 1060, 1064 (10th Cir. 2005) (quotation
omitted). To apply the mandate rule to the present case, we “examine the
mandate and then look at what the district court did.” Proctor & Gamble Co.,
317 F.3d at 1126 (internal quotation omitted).
Here, our mandate stated, “Accordingly, Rollow’s conviction is affirmed.
However, her sentence is vacated and the matter is remanded to the district court
with direction that she be re-sentenced in accord with Booker-Fanfan.” Rollow,
146 F. App’x at 295. Because this mandate lacks the sort of specificity required
to limit the district court’s resentencing authority, see United States v. Hicks,
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146 F.3d 1198, 1200-01 (10th Cir. 1998), the district court had discretion to
accommodate M s. Rollow’s request and expand the scope of resentencing.
But the district court apparently believed it was constrained to reevaluate
only the two sentence enhancements. Indeed, recognizing that we had focused on
the district court’s findings that M s. Rollow obstructed justice and played a major
role in the offense, the district court interpreted our mandate as limiting the
remand to the “raising of the offense level from 30 to 34 on the basis that the
guidelines were mandatory.” Re-Sent. Tr. 12. The court thus declined to expand
the scope of resentencing beyond the two sentence enhancements, stating:
I do believe that this Court is obliged to conduct this hearing and the
resentencing only on those issues, and if – if the scope should be
enlarged, as [defense counsel] suggest[s], it seems to me that the
Court of Appeals w ould have to be the body to instruct this Court to
do so, and that’s my analysis of the – of the remand order.
....
[I]f the Court of A ppeals should clarify that and agree with [defense
counsel], it will come back and – and we’ll proceed again with a
broadened scope, but it is not – it is not my role, in my opinion, to
attempt to broaden the issues remanded for this Court to address, and
it is only for the Court of Appeals to do so.
Id. at 12-13.
As these passages demonstrate, the district court incorrectly believed it
could not reconsider M s. Rollow ’s entire sentence. This error was harmless,
however, because although M s. Rollow initially objected to the drug quantity
used to establish her base offense level, she made no offer of proof to refute that
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quantity. Indeed, she has failed to proffer any evidence at all disputing the
quantity of pseudoephedrine alleged in the PSR. Her inability to do so is a strong
indication that the base offense level was premised on actual conduct. See United
States v. Riccardi, 405 F.3d 852, 876 (10th Cir. 2005). M oreover, the jury heard
ample evidence that M s. Rollow was involved in the conspiracy and was
responsible for 3,438 kilograms of pseudoephedrine. The jury thereafter
convicted her for committing the offense. Under these circumstances, the district
court’s failure to reevaluate M s. Rollow’s base offense level did not affect her
substantial rights.
Additionally, we note that based on the record before us, there is no
indication that M s. R ollow raised this issue on direct appeal. The fact that we
completely omitted M s. Rollow’s base offense level from our previous analysis
strongly suggests that despite objecting to the drug quantity calculation at
sentencing, she concentrated her appellate efforts on challenging her sentence
enhancements. If this is indeed the case, it is not at all surprising that the district
court declined to reevaluate M s. Rollow’s base offense level where she did not
challenge it on appeal. In any event, we are satisfied that M s. Rollow’s
substantial rights were not violated and therefore conclude that the district court’s
error in limiting the scope of the remand was harmless.
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B. Discretionary Application of the Sentencing G uidelines
M s. Rollow next attempts to invoke Booker’s substantive rule, but avoid its
remedial holding. Beginning with the premise that Booker is inapplicable because
she was sentenced pre-Booker, M s. Rollow contends the district court was without
authority to retroactively apply the sentencing guidelines in an advisory fashion
so as to enhance her sentence. Yet citing Jones v. United States, 526 U.S. 227,
243 n.6 (1999), M s. Rollow clings to Booker’s substantive Sixth Amendment
protection that any fact (other than a prior conviction) that increases the
maximum penalty for a crime must be charged in an indictment, submitted to a
jury, and proved beyond a reasonable doubt. 1 Thus, reasoning that she is
protected from retroactive, discretionary application of the sentencing guidelines,
but entitled to a jury verdict on any fact that increases her sentence, M s. Rollow
concludes that her correct sentencing range is 10 to 16 months.
Initially, w e note that M s. Rollow’s position is undercut by her own
concession that Booker applies to all cases on direct appeal. See Aplt. Br. at 13
(“Booker/Fanfan applies to all cases on direct appeal.”). Nonetheless, our
1
Defense counsel cites “Jones v. Unite [sic] States, 527 U.S. 373, 388, 119
S.Ct. 1215 (1999).” See Aplt. Br. at 3, 15. This reference merges the citations of
tw o different cases, Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215 (1999),
and Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090 (1999). The error is
complicated by the fact that throughout his brief, counsel refers to the authority
only as “Jones.” See, e.g., Aplt. Br. at 16. Because the basis of M s. Rollow’s
appeal concerns a sentencing issue addressed in Jones v. United States, 526 U.S.
227, 119 S.Ct. 1215 (1999), we can only assume counsel intended to invoke this
authority, and not Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090 (1999).
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precedent has foreclosed the possibility of M s. Rollow avoiding Booker’s
remedial holding. In United States v. Rines, 419 F.3d 1104, 1106 (10th Cir.
2005), we rejected the similar contention that applying Booker’s remedial holding
to a pre-Booker offense w ould violate the Fifth A mendment’s Due Process
Clause. W e explained that this argument is “contrary to the Supreme Court’s
explicit instructions in Booker,” id., which w ere that “w e must apply today’s
holdings – both the Sixth Amendment holding and our remedial interpretation of
the Sentencing Act – to all cases on direct review,” Booker, 543 U.S. at 268.
M s. Rollow’s case was on direct review at the time Booker was decided. The
district court therefore was correct to retroactively consider and apply the
guidelines in an advisory fashion. M s. Rollow’s insistence that all
sentence-enhancing facts must be proven beyond a reasonable doubt does not alter
the analysis because post-Booker, “district courts are still required to consider
Guideline ranges, which are determined through application of the preponderance
standard, just as they were before,” United States v. M agallanez, 408 F.3d 672,
685 (10th Cir. 2005) (citation omitted). M s. Rollow’s sentence here was based on
a quantity of drugs for which she was found responsible by a jury without any
offer of proof to the contrary; her sentence w as enhanced through discretionary
judicial fact-finding by a preponderance of the evidence. M s. Rollow received all
the protections the constitution affords.
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III. Conclusion
The judgment of the district court is AFFIRMED.
Entered for the Court
David M . Ebel
Circuit Judge
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