United States v. Butler ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 02-4705
GARY BUTLER, a/k/a Garry Butler,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-91-194-MU)
Argued: May 9, 2003
Decided: June 17, 2003
Before WILKINS, Chief Judge, and WILKINSON and
LUTTIG, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
ARGUED: Jennifer Marie Hoefling, Assistant United States Attor-
ney, Charlotte, North Carolina, for Appellant. Carole Melissa Owen,
Charlotte, North Carolina, for Appellee. ON BRIEF: Robert J. Con-
rad, Jr., United States Attorney, C. Nicks Williams, Assistant United
States Attorney, Holly S. Pierson, Assistant United States Attorney,
Charlotte, North Carolina, for Appellant. Noell P. Tin, Charlotte,
North Carolina, for Appellee.
2 UNITED STATES v. BUTLER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The United States appeals from the district court’s imposition of an
87 month sentence with respect to defendant, Gary Butler, after resen-
tencing conducted pursuant to this court’s mandate in United States
v. Butler, No. 97-7299, 1999 U.S. App. LEXIS 856 (4th Cir. Jan. 22,
1999). The United States contends that the district court violated our
mandate in sentencing Butler to less than the twenty year statutory
maximum for his drug conspiracy conviction, and that the district
court erred by concluding that all three exceptions to the mandate rule
applied. We agree, and vacate the district court’s sentence and remand
for resentencing.
I.
In 1992, Butler was convicted of violating 21 U.S.C. §§ 841(a)(1)
and 846, under an indictment for conspiracy to possess cocaine (not
cocaine base) with intent to distribute. During the sentencing hearing,
Butler objected to the amount of cocaine base attributed to him as rel-
evant conduct under Sentencing Guideline §1B1.3. The district court
found that there was ample evidence of distribution in excess of 1.5
kilograms of cocaine base, and sentenced Butler to 420 months
imprisonment. Butler appealed, and we affirmed. United States v.
Butler, 16 F.3d 412 (4th Cir. 1994) (unpublished opinion) ("Butler
I").
In 1997, Butler filed a motion under 28 U.S.C. § 2255, contending
that the sentence imposed exceeded the statutory maximum for the
offense of conviction. The district court denied the motion, but upon
appeal we vacated the district court’s order in part, and remanded to
the district court to re-sentence Butler to the statutory maximum of
twenty years imprisonment. United States v. Butler, No. 97-7299,
1999 U.S. App. LEXIS 856 (4th Cir. Jan. 22, 1999) ("Butler II").
UNITED STATES v. BUTLER 3
In 2001, the district court held a resentencing hearing at which it
heard additional evidence presented by Butler, and sought additional
briefing from the parties on several legal issues. On July 30, 2002, the
district court held a second resentencing hearing at which it sentenced
Butler to 87 months imprisonment. The district court concluded that
the mandate from this court in Butler II did not foreclose it from con-
ducting a de novo resentencing of Butler, and, apparently in the alter-
native, that all three exceptions to the mandate rule applied. The
United States now appeals, contending that the district court erred on
each point.
II.
The mandate rule is a "specific application of the law of the case
doctrine," and requires that a lower court "carry the mandate of the
upper court into execution and . . . not consider the questions which
the mandate laid at rest." United States v. Bell, 5 F.3d 64, 66 (4th Cir.
1993). This rule "compels compliance on remand with the dictates of
a superior court." Id. And "except in rare circumstances" the district
court must "implement both the letter and spirit of the . . . mandate,
taking into account our opinion and the circumstances it embraces."
Id. (internal quotation marks and brackets omitted). The mandate rule
binds the lower court except in "the following extraordinary circum-
stances: (1) a showing that controlling legal authority has changed
dramatically; (2) that significant new evidence, not earlier obtainable
in the exercise of due diligence, has come to light; or (3) that a blatant
error in the prior decision will, if uncorrected, result in a serious injus-
tice." United States v. Aramony, 166 F.3d 655, 662 (4th Cir. 1999).
A.
In Butler’s appeal of the denial of his motion pursuant to 28 U.S.C.
§ 2255, we vacated his sentence and remanded for the district court
to resentence him, instructing as follows:
Based on 389 grams of powder cocaine, the statutorily
authorized maximum sentence is twenty years. Although the
guidelines range exceeds the statutory maximum, the statu-
tory maximum takes precedence over the guidelines range.
Under the Guidelines, when the statutorily authorized maxi-
4 UNITED STATES v. BUTLER
mum sentence is less than the minimum of the guidelines
range, as here, the maximum statutory sentence shall be the
guidelines sentence. Accordingly, Butler’s guidelines sen-
tence is twenty years, and he must be resentenced accord-
ingly.
Butler II, 1999 U.S. App. LEXIS 856 at *6 (emphasis added) (internal
citations omitted). We also proceeded to grant a certificate of appeala-
bility and vacate the sentence based on ineffective assistance of coun-
sel, for counsel’s failure to raise this issue on direct appeal. Id. at *6-
7.
In United States v. Bell, the mandate issued by this court "con-
tained precise and unambiguous instructions, and directed the [dis-
trict] court to do only one thing on remand — impose a sentence
within the specified guideline range of 87-108 months." Id. at 67. We
held that the district court’s failure to obey this precise instruction
constituted a violation of the mandate rule.
As in Bell, our mandate in Butler II contained "precise and unam-
biguous instructions." Bell, 5 F.3d at 67. The district court was
directed "to do only one thing on remand," impose a sentence of
twenty years imprisonment on Butler. Id. The district court, instead,
after taking further evidence and receiving additional briefs, sen-
tenced Butler to 87 months imprisonment. This action by the district
court was in violation of our mandate.
Butler cites a parenthetical dictum in United States v. Broughton-
Jones, 77 F.3d 1143 (4th Cir. 1995), for the proposition that "unless
specifically limited by [the] court of appeals’ mandate, resentencing
on remand is de novo." Id. at 1149 n.4, citing United States v. Bell,
5 F.3d 64, 67 (4th Cir. 1993). Even if this dictum correctly stated the
law of this circuit, it would be irrelevant here, because our mandate
was precise and unambiguous, and instructed the district court to cor-
rect one specific error only. Given this mandate, this case is con-
trolled by Bell and United States v. Apple, 962 F.2d 335, 337 (4th Cir.
1992) ("The district court properly felt constrained . . . by our remand
instructions . . . to limit its reconsideration of the sentences to that
alone which we indicated might have been incorrect.") (emphasis
UNITED STATES v. BUTLER 5
added). Accordingly, the district court erred by conducting a de novo
resentencing.
B.
A district court is permitted to disregard the mandate where any
one of three "extraordinary circumstances" exists. Aramony, 166 F.3d
at 662. The district court concluded that all three exceptions to the
mandate rule were present. In this conclusion, too, the district court
erred.
First, the district court concluded that Apprendi v. New Jersey, 530
U.S. 466 (2000), decided between the time of this court’s remand for
resentencing and the resentencing hearing, dramatically changed the
controlling legal authority. But an Apprendi error occurs only where
a sentence above the statutory maximum for the offense is imposed.
See United States v. Angle, 254 F.3d 514, 518 (4th Cir. 2001). Here,
as our remand required the district court to sentence at the statutory
maximum, not above it, Apprendi was not implicated at all by But-
ler’s resentencing.
Butler attempts to construct a dramatic change in the controlling
legal authority by linking Apprendi and United States v. Promise, 255
F.3d 150 (4th Cir. 2001), with McMillan v. Pennsylvania, 477 U.S.
79 (1986): "Because of [Apprendi’s and Promise’s] change in the
legal landscape," he argues, "uncharged conduct threatened to
increase Mr. Butler’s offense dramatically, potentially in violation of
McMillan v. Pennsylvania." Appellee’s Brief, at 15.* But the flaw in
this argument is that Apprendi and Promise did not change the rele-
vant legal landscape. Uncharged conduct (in this case, conspiracy to
distribute cocaine base) "threatened to increase" dramatically Butler’s
sentence regardless of whether this uncharged conduct is classified as
an element of the crime or as a sentencing factor. Hence, Apprendi
*McMillan suggests that where a sentencing factor acts as "a tail
which wags the dog of the substantive offense," the existence of the fac-
tor would have to be proven beyond all reasonable doubt, rather than by
a lower standard such as preponderance of the evidence. McMillan, 477
U.S. at 88.
6 UNITED STATES v. BUTLER
and Promise, even considered together with McMillan, did not change
at all the controlling legal authority relevant to Butler’s resentencing.
Second, the district court concluded that the "extraordinary circum-
stance" of "significant new evidence" warranted a departure from the
mandate rule. The "significant new evidence," however, consisted of
nothing more than statements taken from a few prosecution witnesses
and co-conspirators that differed, mostly in inconsequential fashion,
from portions of testimony by others at Butler’s sentencing hearing.
To give an illustration, Butler submitted, at the resentencing hearing,
an affidavit from Sean Ashe, an unindicted co-conspirator, asserting
that two particular drug couriers did not work for Butler. In contrast,
at the initial sentencing hearing, Agent Beam (an official who con-
ducted much of the investigation of Butler) testified, based on infor-
mation gleaned from participants in the conspiracy, that these two
couriers did work for Butler. It is not reasonable to think that a fact-
finder would be compelled to disregard Agent Beam’s testimony
based on this affidavit alone; nor would disregard of the evidence
relating to these two couriers have any effect on the other evidence
that showed Butler’s involvement with well over 1.5 kilograms of
cocaine base.
As another example, Butler presented evidence from an interview
of Mr. Desmond Henry, one of Butler’s co-defendants, taken after
Butler’s sentencing. In this interview, Henry stated that he, Butler,
and all the other drug dealers were "in it for themselves" and did not
work in an organized ring, J.A. 385, that several rocks of cocaine
found on Ms. Hattie Aaron belonged to him, not Butler, and that the
two drug couriers mentioned above from Ashe’s affidavit worked for
him, not Butler. Again, it would be quite unreasonable to conclude
that a factfinder would be compelled to credit Henry’s statements
over the statements of other knowledgeable participants in the con-
spiracy, such as Michael Green, Paulette Jackson, and Hattie Aaron,
presented at the initial sentencing hearing. The discovery of such
inconsistencies between the statements of members of a conspiracy is,
after all, a breathtakingly ordinary circumstance, not an "extraordi-
nary" one. And also, at least as to the statements regarding the owner-
ship of the rocks of cocaine and the employment of the two drug
couriers in question, even crediting these statements would have no
significant impact on the other evidence showing Butler’s involve-
UNITED STATES v. BUTLER 7
ment with a large amount of cocaine base. This evidence, then, and
the like evidence presented by Butler, does not rise to the level of
"significant," nor does its discovery and presentation constitute an
"extraordinary circumstance."
As to the third exception to the mandate rule, the district court did
not identify any blatant error in any prior proceeding, much less one
that would result in a "substantial injustice" if it were left uncorrected.
In fact, no error has been identified in any prior proceeding other than
the initial imposition of a sentence above the statutory maximum
(which was to be corrected pursuant to the mandate of this court).
Thus, the district court erred on this score as well.
As no exception to the mandate rule was applicable in this case, the
district court was bound to carry out the mandate of this court to sen-
tence Butler to twenty years. By failing to do so, the district court
committed reversible error.
CONCLUSION
For the reasons stated, the sentence imposed by the district court
is vacated, and the case is remanded with the instruction that the dis-
trict court impose a sentence of twenty years of imprisonment on But-
ler.
VACATED AND REMANDED