United States v. Burns ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 10, 2015
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-5022
(D.C. No. 4:12-CR-00053-CVE-1)
JAMES HOWARD BURNS, (N.D. Okla.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges.
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Appellant James Howard Burns challenges the district court’s decision to
modify his conditions of supervised release without a hearing and without him
present. We affirm.
Mr. Burns was convicted in the district court based on his guilty plea to the
possession of child pornography. The district court sentenced him to 63 months’
imprisonment followed by a term of supervised release that, in relevant part, barred
him from having contact with children, including his minor daughter, without
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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 with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
approval from his probation officer. On direct appeal, Mr. Burns challenged that
condition and we found plain error, stating “we vacate the restriction that requires
probation office approval for Mr. Burns to contact his daughter and remand for
reconsideration of this restriction.” United States v. Burns, 775 F.3d 1221, 1223
(10th Cir. 2014).
On remand, the district court determined that our decision did not authorize a
de novo resentencing, limiting its review to reconsideration of the supervised release
condition “specified by the Tenth Circuit.” R., Vol. 1 at 58. Without a hearing, the
district court modified the condition to exempt family members under Fed. R. Crim.
P. 32.1(c)(2), which allows modification of supervised release conditions without a
hearing if the relief is favorable to the defendant. Mr. Burns brings this appeal
arguing that the district court erred in not holding the hearing with him present.
Mr. Burns insists that our decision on direct appeal did allow for resentencing
because we directed the district court to reconsider the condition and said nothing to
limit resentencing, and because we “vacated” the condition, leaving nothing for the
district court to modify.
Generally, re-sentencing on remand is de novo. United States v. Keifer,
198 F.3d 798, 801 (10th Cir. 1999). “[D]e novo resentencing permits the receipt of
any relevant evidence the court could have heard at the first sentencing hearing.” Id.(internal quotation marks omitted). The district court, however, is not obligated to
conduct a de novo re-sentencing. On remand, the court “has the discretion to
entertain evidence that could have been presented at the original sentencing even on
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issues that were not the specific subject of the remand.” Id. (emphasis added)
(internal quotation marks omitted). Thus, a court’s decision to limit the scope of
re-sentencing is reviewed for abuse of discretion. On remand, “unless the district
court’s discretion is specifically cabined, it may exercise discretion on what may be
heard.” United States v. West, 646 F.3d 745, 749 (10th Cir. 2011). The district court
“is to look to the mandate for any limitations on the scope of the remand.” Id.Looking at the mandate, we said “reconsideration” and never said
“resentencing.” Burns, 775 F.3d at 1223. While it is true, as Mr. Burns suggests,
that not saying “resentencing” does nothing to limit resentencing on remand, the
words we did use paint a clear picture of our intentions. Our vacatur was of the
specific restriction of Mr. Burns’ ability to see his minor daughter and did not
envelop the whole condition on Mr. Burns’ ability to be in contact with minor
children in general. Thus, the text of our order specifically cabins the district court to
amend the condition and nothing else on remand. See West, 646 F.3d at 749. When
the district court did exactly that, it did not abuse its discretion. Accordingly, we
affirm.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
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