United States v. Mitre , 209 F. App'x 249 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5008
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRICEIDA MITRE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, District
Judge. (CR-03-327)
Submitted: June 30, 2006 Decided: December 8, 2006
Before WILKINSON, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John D. Brosnan, WATERS & WISE, PLLC, Fairfax, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Kevin R.
Gingras, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Briceida Mitre appeals the sentence imposed on
resentencing in light of United States v. Booker, 543 U.S. 220(2005), for conspiracy to possess with intent to distribute one
kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1),
846 (2000), and conspiracy to import one kilogram or more of
heroin, in violation of 21 U.S.C. §§ 952(a), 963 (2000). Mitre was
sentenced to 120 months in prison. She timely appealed.
In her first direct appeal, Mitre challenged her
conviction on three bases, including that the district court’s
supplemental jury instruction in response to a question from the
jury was plain error. During its deliberation, the jury asked the
court whether they had to find the drug quantity attributable only
to Mitre or to the conspiracy as a whole. The court instructed the
jury that it “should determine what the Government has proven
beyond a reasonable doubt that relates to the conspiracy.” At
trial, Mitre did not object to the instruction. The jury
thereafter convicted Mitre of one kilogram or more on both counts.
Mitre argued in her first appeal that the instruction
failed to inform the jury that she could only be held responsible
for the drug quantities of the other conspirators if they were
reasonably foreseeable and in furtherance of the conspiracy. The
panel, relying on United States v. Collins, 401 F.3d 212, 220 (4th
Cir. 2005) (Collins I), held that the district court’s instruction
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did not violate Mitre’s substantial rights and therefore she did
not demonstrate plain error. However, because the panel found that
her sentence violated Booker, the case was remanded for
resentencing. Mitre filed a petition for rehearing, which was
denied. Seven days before the mandate issued in Mitre’s case, the
court, on petition for rehearing, reversed Collins I and issued a
new opinion in United States v. Collins, 415 F.3d 304 (4th Cir.
2005) (Collins II). Collins II reversed the prior panel decision
holding that any error in the supplemental jury instruction was
harmless and held that the improper jury instruction invalidated
the quantity of drugs determined at trial and the conviction could
only be upheld on a finding of a default quantity of drugs.
Collins II, 415 F.3d at 311-15.
At Mitre’s resentencing hearing, Mitre’s counsel argued
that the mandate rule should not apply and the district court
should apply Collins II when determining the amount of drugs
attributable to Mitre. Because the district court’s supplemental
instruction was error, Mitre contended that, under Collins II, she
should be sentenced using a default, lowest level, drug amount.
The district court held that it was only permitted to reconsider
the sentence in light of this court’s mandate with regard to Booker
error. The district court therefore sentenced Mitre to the minimum
statutory sentence under 21 U.S.C. § 841(b)(1)(A)(i) (2000). The
court did not make additional or renewed findings on drug quantity.
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Therefore the 4.5 kilograms originally found by the district court
as attributable to Mitre was still valid.
Mitre argues that the district court violated her Sixth
Amendment rights when it sentenced her based on drug quantity not
found by a jury due to the erroneous jury instruction. She
contends that she should have been sentenced based on a default
drug quantity, as outlined in Collins II. She claims that the
court should have imposed a sentence consistent with the default
quantity under 21 U.S.C. § 846 (2000) (penalty provisions found at
21 U.S.C. § 841) after considering the advisory guideline range.
Mitre, however, bases her argument on the default, or lowest drug
amounts found in U.S. Sentencing Guidelines Manual § 2D1.1 (2003).
She claims that under USSG § 2D1.1, for less than five grams of
heroin attributable and her established criminal history category
of I, the advisory sentencing guidelines range would be 10-16
months of imprisonment.
The mandate rule is a “‘specific application of the law
of the case doctrine.’” United States v. Bell, 5 F.3d 64, 66 (4th
Cir. 1993) (quoting United States v. Bell, 988 F.2d 247, 251 (1st
Cir. 1993)). Generally, “‘the doctrine [of the law of the case]
posits that when a court decides upon a rule of law, that decision
should continue to govern the same issues in subsequent stages in
the same case.’” United States v. Aramony, 166 F.3d 655, 661 (4th
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Cir. 1999) (quoting Christianson v. Colt Indus. Operating Corp.,
486 U.S. 800, 815-16 (1988)). The law of the case must be applied:
“in all subsequent proceedings in the same case in the
trial court or on a later appeal . . . unless: (1) a
subsequent trial produces substantially different
evidence, (2) controlling authority has since made a
contrary decision of law applicable to the issue, or
(3) the prior decision was clearly erroneous and would
work manifest injustice.”
Id. (quoting Sejman v. Warner-Lambert Co., 845 F.2d 66, 69 (4th
Cir. 1988)); see S. Atl. Ltd. P’ship of Tenn. v. Riese, 356 F.3d
576, 583 (4th Cir. 2004) (discussing “mandate rule, which has been
characterized as a more powerful version of the law of the case
doctrine”) (internal quotation marks and citation omitted).
We conclude that the mandate rule applies because there
is no exception to bar its application. Although, in upholding
Mitre’s conviction in her first direct appeal, we cited Collins I
for the proposition that the error complained of did not affect
Mitre’s substantial rights, the reversal of the Collins case in no
way affects the controlling authority governing Mitre’s case.
Collins involved harmless error review, while Mitre involves plain
error review.
The different requirements for harmless error and plain
error make it clear that the outcome in Collins II does not dictate
the outcome of Mitre. The fact that the Government in Collins
failed to prove beyond a reasonable doubt that the error complained
of was not substantial does not compel the conclusion that Mitre
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met her burden of proof in showing that a similar error was
substantial. And, even if it did, plain error review further
requires the court to find that the error “seriously affect[ed] the
fairness, integrity, or public reputation of judicial proceedings.”
United States v. Carr, 303 F.3d 539, 543 (4th Cir. 2002). That is
not the case here where the defendant has been found responsible
for 4.5 kilograms of heroin and even remand for resentencing to the
statutory default would yield a sentence between zero and twenty
years, a range consistent with the defendant’s existing sentence of
ten years. We therefore conclude that the mandate rule applies and
even if it did not, Mitre cannot demonstrate plain error resulting
from an erroneous jury instruction under Collins.
Even if the mandate rule did not apply, and the district
court had considered Collins II, there is no Sixth Amendment error
in Mitre’s sentence. The statutory penalty provisions of 21 U.S.C.
§ 841(b)(1)(C) (2000) would have been applicable because the
default drug amount would be less than 100 grams of heroin. The
statutory range would then be zero to twenty years of imprisonment.
As noted above, Mitre’s ten-year sentence falls within that range.
On resentencing, the district court believed that it was
bound by the jury verdict of one kilogram of heroin in determining
the statutory sentencing range. That range, under 21 U.S.C.
§ 841(b)(1)(A)(i) is a minimum of ten years and maximum of life
imprisonment. Even if the district court mistakenly concluded that
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it was operating under 21 U.S.C. § 841(b)(1)(A)(i), such a
conclusion would not be reversible error. The guideline range,
based on a drug quantity of 4.5 kilograms of heroin, was 151-188
months of imprisonment--a range above the sentence imposed.*
We therefore affirm Mitre’s sentence. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
*
We note that Mitre’s argument that the court is bound by the
default level of quantity found in the sentencing guidelines is
faulty. After Booker, the district court may still determine the
amount of drugs attributable to the defendant, which may be above
the amount authorized by the jury verdict. However, the guideline
range based on that drug quantity is advisory.
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