United States v. Becerra , 155 F.3d 740 ( 1998 )

Revised October 5, 1998
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 96-40569
____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee-Cross
Appellant,
versus
RUBEN GIL BECERRA,
Defendant-Appellant-
Cross-Appellee,
and
AURELIANO SALINAS, SR; AURELIANO SALINAS, JR;
ALBERICO SALINAS; VICTOR LEAL; JORGE LUIS
RAMIREZ,
Defendants-Cross-
Appelees.
Appeals from the United States District Court
for the Southern District of Texas
September 16, 1998
Before WIENER, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
After a long and somewhat distorted journey, this case now
reaches us on appeal for the second time. See United States v.
Leal, 74 F.3d 600, 607-08 (5th Cir. 1996). In the first appeal, a
prior panel affirmed the convictions of Ruben Gil Becerra
(“Becerra”), Aureliano Salinas, Sr. (“Salinas, Sr.”), Aureliano
Salinas, Jr. (“Salinas, Jr.”), Alberico Salinas (“Beco”)1, Victor
Leal (“Leal”), and Jorge Luis Ramirez (“Ramirez”) for conspiracy to
possess with intent to distribute in excess of 1,000 kilograms of
marijuana (Count 1) and for possession with intent to distribute
the same amount of that drug (Count 2), in violation of 21 U.S.C.
§§ 846 and 841(a)(1). The prior panel, however, reversed and
vacated the sentences that the district court imposed, concluding
that the district court committed clear error in attributing to the
defendants the 3,160 pounds of marijuana that police discovered in
a shed on the ranch where defendant Becerra unloaded a tanker-
trailer full of marijuana.
Our opinion “remand[ed] to the district court for
resentencing, attributing to the defendants the amount of marijuana
related to the testimony at trial.” Id. at 607-08. None of the
parties disputed that the testimony at trial put the weight of the
expected marijuana delivery at around 1,100 pounds. See id. On
remand, however, the government argued that the district court was
not bound by our prior opinion to resentence the defendants based
on “the testimony at trial” because the prior panel did not have a
1
Throughout the trial and in the prior opinion, the
parties referred to Alberico Salinas as “Beco.” For the sake of
clarity, this opinion will do the same.
-2-
transcript of Becerra’s sentencing hearing or his confession to the
FBI, both of which supported the district court’s conclusion that
the defendants transported all 3,160 pounds of marijuana discovered
in the shed. Nonetheless, the district court determined that it
was bound by our prior opinion to resentence each of the defendants
based on 1,100 pounds of marijuana, the amount that the
confidential government informant (“confidential informant” or
“CI”) had testified he believed would be delivered.
The government now appeals, alleging that the district court
erred in determining that it was bound by our prior opinion to
resentence the defendants using 1,100 pounds of marijuana, and that
we should apply an exception to the law of the case doctrine to
reverse our earlier determination in Leal. The government also
argues that, in any event, the district court lacked jurisdiction
to resentence Leal. Becerra cross-appeals, claiming that the
district court erred in resentencing him without granting a four-
level, minimal-participant reduction and a three-level, acceptance-
of-responsibility reduction. We affirm. Although we agree with
the government that the now-supplemented record would have
adequately supported the district court’s decision to sentence the
defendants based on 3,160 pounds of marijuana, the exceptions to
the law of the case doctrine do not apply to the case at hand. We
similarly reject Becerra’s claims of error.
I
-3-
While our prior opinion in Leal sets out most of the facts of
the underlying drug conspiracy, the parties failed to provide the
prior panel with significant portions of the district court record.
Consequently, the panel did not have before it several important
pieces of information relevant to the validity of the district
court’s sentencing decision. Accordingly, we recite the facts as
they relate to the issues currently on appeal and point out the
critical facts that the prior panel did not have an opportunity to
consider.
The drug conspiracy for which the defendants were convicted
culminated on November 5, 1991, with defendants Becerra and Leal
driving a tractor-trailer full of marijuana to a ranch north of San
Antonio (“Kirchner Ranch”). Because the confidential informant had
given the police all the details of the planned delivery, drug
enforcement agents had the trailer under constant surveillance
throughout this day. After the trailer arrived at the ranch,
Becerra unloaded the marijuana into a shed on the Kirchner Ranch.
The police arrested Becerra and Leal as they drove the empty
trailer from the ranch. The police then entered the ranch and
discovered 3,160 pounds of marijuana in the shed. The police
subsequently arrested all of the defendants and indicted them for
their actions in the drug conspiracy.
Of utmost importance in this case is the fact that Becerra
gave two detailed statements to Federal Bureau of Investigation
-4-
(“FBI”) agents in which he admitted that he was told on at least
two occasions that the November 5th delivery would total 3,000
pounds. Another significant fact is that Becerra confessed to
Judge Kazen in his original sentencing hearing that the shed was
empty when he began unloading the trailer and that some of the
defendants))after trial, but before sentencing))told him to say that
the shed was full of marijuana when he arrived. For reasons we
cannot surmise, the government failed to bring either of these
facts to the attention of our prior panel. Not surprisingly,
Becerra similarly failed to raise them with our prior panel.
Because these facts were not considered on the first appeal, we
will set them out in detail here.
A.
In early January 1992, after Becerra and the other defendants
had been released from jail at the request of the U.S. Attorney’s
Office,2 FBI Agent Mike Rayfield (“Agent Rayfield” or “Rayfield”)
arranged for Becerra to fly from Dallas to San Antonio to meet at
the FBI offices. The FBI paid for Becerra’s plane ticket and Agent
Rayfield met him at the San Antonio airport on January 18, 1992.
Agent Rayfield, together with another FBI Agent, David
Schmactenberger, interviewed Becerra for several hours. Although
the interview was not tape recorded, Agent Rayfield took detailed
notes of Becerra’s statement (“January 18th statement”). Becerra
2
The defendants were released so that the government could
continue its investigation into related drug conspiracies.
-5-
provided a complete description of the November 5th drug
conspiracy. Becerra’s statement indicates that just prior to the
delivery he was told by Michael Goerndt (who is not a defendant in
this case) that the delivery would be increased from 800 pounds to
3,000 pounds:
On Tuesday, November 5, 1992, BECERRA picked up GOERNDT
at GOERNDT’s house at approximately 11:00 a.m. Between
3:00 and 4:00 p.m., GOERNDT was paged by a guy from
Laredo. BECERRA advised that GOERNDT then called Laredo
from a pay phone. Upon completion of the call, GOERNDT
told BECERRA “were in luck, 800 pounds is on the way.”
GOERNDT told BECERRA that they were to meet the load at
10:00 p.m.
BECERRA advised that GOERNDT was paged again at 7:00
p.m. GOERNDT made a phone call and at the completion of
the call told BECERRA they were to meet ERNIE, PABLO, and
ROGELIO at a McDonalds and 3,000 pounds of marijuana was
on the way. GOERNDT further told BECERRA that 2,000
pounds was for PABLO and 1,000 pounds was for someone
else.
Becerra’s statement also indicates that during the November 5th
delivery, another defendant (Beco) bragged that the 3,000 pound
marijuana shipment came from him:
BECERRA advised that once at the motel ROGELIO stayed in
the car (BECERRA’s car) and he, BECERRA, went to the room
and met with a Hispanic male (later identified by BECERRA
in a photo array as ALBERICO SALINAS) who rode with
BECERRA and ROGELIO as they led the tanker tractor-tailor
to the KIRCHNER ranch. During the drive, ALBERICO
constantly bragged about his marijuana trafficking and
indicated the 3,000 pounds to be delivered came from him.
Becerra also admitted to Agent Rayfield that he (Becerra) was the
one who unloaded the marijuana from the trailer into a shed located
next to the main residence. After the interview was finished,
Agent Rayfield took Becerra back to the airport and told Becerra to
-6-
“stay in touch.”
On June 9, 1993, after Becerra was rearrested and incarcerated
in Mansfield Correctional Facility, Agent Rayfield, together with
Drug Enforcement Agency Agent Jeffrey Jackson (“Agent Jackson”),
met with Becerra to go over his January 18th statement. Agent
Rayfield read Becerra his Miranda rights and Becerra signed a
statement explaining that he did not have a lawyer and that he did
not wish to have one present at that time. Agent Jackson then told
Becerra that he would get no more than five years time to serve if
he agreed to fully cooperate and testify in this case.3 Becerra
told the agents that he was hoping for probation, but Agent Jackson
informed Becerra that probation was not possible. The agents and
Becerra reviewed Becerra’s statement sentence by sentence, making
amendments and changes where Becerra remembered different details.
Becerra again acknowledged that the statement was his complete
recollection of the events surrounding the November 5th drug bust.
Becerra did not state that there was already a substantial amount
of marijuana in the shed when he began unloading the trailer (let
alone 2,000 pounds), and he did not retract his statements
acknowledging that he was told the shipment totaled 3,000 pounds.
Before trial, Becerra sought to have his statements suppressed
on the ground that they had been taken in violation of his
constitutional rights. The district court held an extensive
3
Becerra never testified at trial and did not receive the
benefit of this deal.
-7-
suppression hearing in September 1993 at which Agents Rayfield,
Schmactenberger, and Jackson, as well as Becerra himself,
testified. At the suppression hearing, Becerra contended that the
agents had promised him that he would not be prosecuted if he
cooperated with the government and that the agents never read him
his Miranda rights at the June 9th meeting. Becerra did not
contend before the district court))and for that matter, still does
not contend before this Court))that anything in his statements to
the FBI was materially untrue. At the suppression hearing, Becerra
acknowledged that his statements were “very detailed” and that he
told the agents “everything that [he] knew” about the drug
conspiracy. Becerra also admitted to Judge Kazen that he signed
the waiver of rights form at the June 9th interview, which stated
that he did not have an attorney and that he was willing to talk to
the agents without one present. Becerra nonetheless maintained
that the agents had forged his signature on a different portion of
the waiver form and that he only agreed to speak to the agents
because they promised he would not be prosecuted.
Judge Kazen found that Becerra’s testimony was not credible
and explicitly rejected his assertion that the agents had promised
him that he would not be prosecuted. Judge Kazen accordingly held
that Becerra’s statements to the FBI were voluntary and would not
be suppressed at trial. As we discuss below, however, the
government did not introduce Becerra’s statements into evidence at
-8-
trial4 and failed to bring the substance of the statements to the
attention of the prior panel in either the first appeal or the
petition for panel rehearing.5
B
At trial, the government introduced transcripts of recorded
phone calls between various members of the conspiracy and the
4
Because Becerra’s statements were not physically
introduced into evidence at trial, the district court instructed
the jury as follows:
There is also, and you heard testimony, that one of
these defendants, Mr. Becerra, later, after the fact,
made certain oral statements tending to admit his guilt,
his involvement in this affair. Incidentally, do not
expect . . . and you may be confused about this. Do not
expect to read that statement because it was not
admitted. It was not offered in evidence and properly
so. Because, according to the testimony, it is not a
signed statement by him, it is not a handwritten
statement by him. What you have is the agent telling you
what . . . and there, it’s the agent’s credibility you
have to weigh. He is telling you as a witness under oath
that Becerra told him these things.
Now, he claims to have made notes of those, but the
notes themselves are not the evidence. It’s his
recollection of the . . . It’s his testimony that’s
really evidence. Of course, he can be challenged by his
notes, and that’s why we even had that recess, to be sure
that everybody had seen the notes and asked him whatever
questions they want to ask him, but I’m just telling you,
don’t expect to read a statement ‘cause there isn’t one
in evidence. But to the extent that the Agent
[Rayfield], I believe, has testified here that [Becerra]
told him all of these things, you have to decide what
weight to give that.
(ellipses in original).
5
This omission is particularly puzzling in light of the
fact that Becerra’s motion to suppress his FBI statements was one
of the primary issues before trial and in the first appeal.
-9-
confidential informant. The recorded conversations, like Becerra’s
statements to the FBI, see supra at 5, demonstrated that the
defendants discussed the delivery of varying amounts of marijuana
at different times during the course of the conspiracy. The
confidential informant ultimately testified that the defendants
told him that the plan was to transport about 1,100 pounds of
marijuana from Laredo, Texas to the ranch outside of San Antonio.
All parties conceded that following the defendants’ arrest,
government agents seized 3,160 pounds of marijuana from the shed
located on the Kirchner ranch. The defendants produced no evidence
that any marijuana was in the shed before Becerra’s delivery;
indeed, the defendants did not even raise this theory at trial.
Similarly, perhaps because the weight of the marijuana was not an
element of the substantive offense (and thus was not relevant for
the jury),6 the government produced no witness as to the amount
6
Although the indictment charged the defendants with
conspiracy to possess in excess of 1,000 kilograms of marijuana
(approximately 2,200 pounds), the weight of the drug is not an
element of the substantive offense. See United States v. Cisneros,
112 F.3d 1272, 1282 (5th Cir. 1997) (“[T]his Court has held that
‘[p]roof of the quantity of controlled substances at issue is not
an element of an offense under 21 U.S.C. §§ 841(a) and 846.’”)
(quoting United States v. Montes, 976 F.2d 235, 240 (5th Cir.
1992)). The weight of the drug is, however, relevant for
sentencing purposes. A ten year mandatory minimum applies where
the amount of marijuana is greater than 1,000 kilograms
(approximately 2,200 pounds), see 21 U.S.C. § 841(b)(1)(A)(vii),
while a five year mandatory minimum applies where the amount of
marijuana is between 100 and 1,000 kilograms (approximately 220 -
2,200 pounds). See 21 U.S.C. § 841(b)(1)(B)(vii).
Thus, the indictment put the defendants on notice that they
could be sentenced under the much more stringent penalties for
-10-
actually unloaded from the trailer into the shed.
Although none of the parties introduced Becerra’s statements
into evidence at trial, Agent Rayfield and Agent Jackson testified
at length about his two statements. Rayfield testified that
Becerra had told him that he unloaded the marijuana from the
trailer into the shed and that someone else was supposed to arrive
at the ranch to “split up the three thousand pounds of marijuana.”
Noticeably absent from Rayfield’s testimony about Becerra’s
statement is any suggestion that there was already 2,000 pounds of
marijuana in the shed when he began unloading the trailer:
Prosecutor: Okay. Now, in giving a
statement, did the
defendant Becerra tell
you about the events of
November 5th, 1991?
Rayfield: Yes, he did.
Prosecutor: Okay. What did he say
about that day?
Rayfield: That basically starting
in the morning hours of
that day, he was involved
with several other people
and his function,
supposedly, was to help
unload a load of
marijuana that was coming
up, supposedly, from
Laredo . . . .
* * *
possessing an excess of 2,200 pounds. Notwithstanding this fact,
the defendants put on no evidence supporting their belated claim
that 2,000 pounds of marijuana were already in the shed when
Becerra arrived with the trailer-full of marijuana.
-11-
Prosecutor: Did he tell you where he
went then, after being at
the Relay Station Motel?
Rayfield: Yes. . . . According to
Mr. Becerra, about four
miles south of the ranch,
he got out of his car and
got into the truck with
the driver so that he
could show him exactly
where to go on the ranch,
and that’s what he did.
He led them directly to
the ranch.
Prosecutor: Okay. Did he say whether
or not the tractor
entered the ranch then?
Rayfield: Yes. After they drove
the additional
approximate four miles
and drove into the ranch,
he said they waited about
thirty minutes. They
were expecting some other
people and he was told to
wait. The other people
didn’t show up and so per
the instructions he had
received, they began
unloading the marijuana
from the front two
compartments of the
tanker truck and then
loaded it into a shed
next to a main house on
this ranch. Part of his
instructions were to beep
somebody after the job
was done, because these
other people were
supposed to show up and
begin splitting up the
three thousand pounds of
marijuana. . . .
-12-
Prosecutor: Was that the extent of
what he told you about
his activities on
November 5th, 1991?
Rayfield: Yeah, with one exception.
While he was at the
ranch, the person who
rented the ranch showed
up for about a fifteen
minute period of time.
(emphasis added).
Agent Rayfield also testified about the subsequent June 9,
1993 meeting that he had with Becerra. Rayfield stated that the
purpose of the June 9th meeting was “to check the correctness of
the statement [he] had originally received from Mr. Becerra.”
Agent Rayfield testified that he went over the January 18th
statement sentence by sentence with Becerra and that except for
some minor corrections, “his statement remained the same.” Agent
Jackson similarly testified that:
After Becerra was advised of his rights and after Mr.
Becerra signed the [waiver of rights form] and myself and
Agent Rayfield witnessed it, Mr. Becerra was handed a
copy of the original interview from January of ‘92. We
asked Mr. Becerra to read the form in its entirety and he
read the form. Once he finished the form, we went line
by line, paragraph by paragraph, page by page and
reviewed the original statements that were taken in the
first interview.
Agent Jackson confirmed that Agent Rayfield’s testimony accurately
reflected the substance of Becerra’s statement, and Rayfield
testified that Becerra adopted the written statement as his own.7
7
Notably, at the close of the government’s case, Becerra’s
counsel specifically asked the district court to read Becerra’s
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C
After the jury found the defendants guilty on both counts of
the indictment, attention shifted to sentencing. Oscar Chavez, the
U.S. Probation Officer (“Officer Chavez”), compiled Pre-Sentence
Reports (“PSRs”) for each defendant. Based on Becerra’s detailed
statements to the FBI agents and an interview with Officer Chavez,
the PSRs concluded that the defendants transported the entire 3,160
pounds found at the Kirchner ranch. As Becerra’s PSR indicated,
“[Becerra] made a decision to make a detailed statement to the U.S.
Probation Officer during the course of the presentence
investigation against the [advice] of his attorney.” Becerra’s PSR
further stated that he “has not denied the factual elements of the
offense . . . [and] provided complete information to the Government
concerning his own involvement in the offense prior to the trial.”
The PSR noted that Becerra admitted that he “unload[ed] the
marihuana into a storage room adjacent to the ranch house.” A fact
that was not put in the PSRs))and one that may have avoided the
necessity of the remand in this case))is that Becerra also admitted
to Officer Chavez that the shed was empty and that it contained
only “hay and some dog food” when he began unloading the marijuana
January 18th statement: “If the court would indulge the defendant
in reading the statement that Mr. Becerra gave the agents on
January of 1992 . . . .” Counsel further encouraged the court to
“take it under advisement and look at the contents of what is
alleged on that exhibit, on that alleged statement, it’s really
Becerra working for [Goerndt], Michael [Goerndt].”
-14-
from the trailer.8
Based on Becerra’s “detailed pre-trial statement to FBI
agents” and his “detailed [post-trial] statement to the U.S.
Probation Officer,” the PSR concluded that “Defendant Ruben Gil
Becerra is responsible for participating in transaction number one
of this conspiracy involving the seizure of 3,160 pounds of
marihuana.” Because the drug conspiracy involved more than 2,200
pounds of marijuana (1,000 kilograms), the PSR concluded that there
was a ten year mandatory minimum sentence, see 21 U.S.C. §
841(b)(1)(A), and that the base offense level under the sentencing
guidelines was 32. See U.S.S.G. § 3D1.1. Although the Local Rules
of the Southern District of Texas generally require written
objections to place PSR findings in controversy, see, e.g., United
States v. Ruiz, 43 F.3d 985, 991 & n.13 (5th Cir. 1995); United
States v. Esqueda-Moreno, 56 F.3d 578, 581 n.3 (5th Cir. 1995); cf.
FED. R. CRIM. P. 32(b)(6)(D) (“For good cause shown, the court may
allow a new objection to be raised at any time before imposing
sentence.”), Becerra did not file written objections to the PSR’s
conclusion that he be sentenced based on 3,160 pounds, nor to the
PSR’s factual finding that he was responsible for the total amount
8
The fact that Becerra told the probation officer that the
shed was empty was revealed at his April 6th sentencing hearing
before Judge Kazen. See infra at 21-22.
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of 3,160 pounds of marijuana found in the shed.9
The PSRs for the remaining defendants similarly concluded that
each defendant be sentenced based on the total amount of marijuana
transported by the defendants, unloaded by Becerra, and recovered
from the shed. Unlike Becerra, each of the remaining defendants
filed written objections to the PSR’s conclusion that he be
sentenced based on 3,160 pounds of marijuana. Significantly,
however, none provided rebuttal evidence to contradict Becerra’s
admissions that he unloaded all 3,160 pounds of marijuana into the
shed. Indeed, none of the defendants claimed in their written
objections to the PSR that there was already marijuana in the shed
when Becerra began unloading the trailer (as discussed below, this
theory first was articulated while the defendants were awaiting
sentencing, see infra at 21-22). In fact, with the possible
exception of Salinas, Sr. and Leal, none of the defendants argued
that the November 5th delivery involved any amount less than 3,160
pounds of marijuana.10
9
If the quantity of marijuana had been 1,100 pounds, the
statutory mandatory minimum should have been five years, see 21
U.S.C. § 841(b)(1)(B)(vii), and the base offense level should have
been 28 under the Sentencing Guidelines. See U.S.S.G. § 2D1.1.
Becerra’s only written objection to the PSR, however, was that it
incorrectly determined his criminal history points; this issue is
not relevant on appeal.
10
Salinas, Sr., was the only defendant who contended that
there was less than 3,160 pounds of marijuana transported in the
trailer. He did not, however, support his contention with any
rebuttal evidence, stating in conclusory fashion only that “the
amount of marihuana seized is not the amount that was transported
-16-
Instead, the defendants grounded their objections to the PSRs
on their claims that they did not intend to transport 3,160 pounds
of marijuana (not that 3,160 pounds was not transported). For
example, Ramirez’s objection to the PSR simply stated that he
“should be sentenced at a base offense level that reflects his
knowledge and intent which is 1,100 pounds.” (emphasis added).
Salinas, Jr. similarly grounded his objection on “the Probation
Officer failing to mention that the negotiations involved 700 to
1,100 pounds of marihuana.” Beco’s objections stated only that
“the evidence presented during the trial talked about transporting
700 to 1,000 pounds of marihuana . . . [and] there is no indicia of
reliability that the defendant had knowledge that there was a
larger amount of marihuana being transported.” (emphasis added).
As these objections demonstrate, the defendants (at least in their
written objections) did not dispute the fact that Becerra unloaded
all 3,160 pounds of marijuana found in the shed.
D
The district court held sentencing hearings for Beco, Leal,
Ramirez, and Salinas, Sr. on March 28, 1994. The court
subsequently held a hearing for Salinas, Jr. on April 1, 1994, and
on November 5, 1991. All testimony and information reveals that
the amount was 700 to 1,100 pounds.” Leal maintained his innocence
in the offense and objected to the use of 3,160 pounds as follows:
“The defendant through his attorney maintains that he is innocent
in this case and denies any guilt. . . . The attorney contends
that the evidence at trial showed that the amount of marihuana
involved in this case was 1,100 pounds.”
-17-
a hearing for Becerra on April 6, 1994. At the sentencing
hearings, the defendants again raised several different theories as
to why they should not be sentenced based on the 3,160 pounds of
marijuana discovered at the shed. At the March 28 hearing,
Ramirez’s attorney argued that he should not be sentenced based on
the 3,160 pounds of marijuana because Ramirez did not have
knowledge that 3,160 pounds was being transported. He explained
that “if Jorge Ramirez contemplated that he was involved in an
1,100 pound count conspiracy that turned out to be a 3,000 pound
conspiracy, I don’t think he ought to be sentenced for 3,000
pounds.” Significantly, Ramirez’s counsel did not argue that only
1,100 pounds was transported and delivered to the shed by Becerra,
or that 2,000 pounds was already in the shed. The district court
rejected Ramirez’s claim.
Counsel for Beco took a different approach at his March 28
sentencing hearing, arguing (for the first time) that 2,000 pounds
of marijuana was already in the shed when Becerra began to unload
the marijuana from the trailer. Beco’s counsel explained that
Becerra had now changed his mind about whether the shed was empty
when he began unloading the trailer, and that Becerra was now
willing to testify that the shed was full of marijuana when the
trailer arrived. Judge Kazen rejected Beco’s belated attempt to
call Becerra to testify that the shed was full of 2,000 pounds of
marijuana when he began unloading the trailer and that he had
-18-
inadvertently forgotten to tell the FBI agents and the probation
officer of this fact during his many confessions.
Judge Kazen stipulated that Becerra was now willing to state
that there was 2,000 pounds in the shed, but stated that he would
not bring Becerra into court to backtrack again. Judge Kazen
concluded that he would give no credibility to the self-serving,
jail-house statement that 2,000 pounds of marijuana was already in
the shed when the trailer arrived.11 Judge Kazen decided instead
11
Beco’s counsel had the following exchange with Judge
Kazen:
Counsel: The other point, Your Honor,
just for clearing the record,
because it would be a point on
appeal for [Beco] Salinas; that
I don’t know whether the
Government would stipulate or
the Court acknowledges that Mr.
Becerra is saying, presently,
that there was some marijuana
within, other than bringing him
in to say it.
Court: Well, if that’s what you say is his
latest theory --
Counsel: I spoke with [the probation
officer] and he said that the
last thing [Becerra] told him
was that there was marijuana or
some bundles there. Didn’t you
just tell me that?
Prosecutor: The first time --
Court: I know -- I accept what my probation
officer told -- and I’ll say this for the
record about Becerra, Becerra’s a man
who, when he was captured, gave a full
and complete confession, then hired --
-19-
to rely on Becerra’s uncoerced statements to the probation officer,
Becerra’s failure to object to the quantity of marijuana as set
forth in his own PSR, and the unlikely scenario presented by the
defendants’ new theory (i.e., that the elaborate conspiracy added
only 1,100 pounds of marijuana to the stash of 2,000 pounds of
marijuana already sitting in the shed when Becerra unloaded the
trailer).12 Judge Kazen explained his reasons as follows:
then got a lawyer, then fired that lawyer
and got another lawyer, then all of a
sudden was saying that all that
confession was coerced. Now, he’s back
here in front of me, the other day,
firing that lawyer and saying that lawyer
betrayed him in some way, and -- and I
don’t even know what he wants to do now.
If he wants me to get him a new lawyer,
and I haven’t sentenced him yet, so I
just don’t think it’s appropriate for me
to bring him in here and have him start
trying to backtrack again. Because at
this stage, I have -- you know, based on
the record that I have with Mr. Becerra,
I just -- you know, I give no credibility
at this stage to what he’s saying anyway.
And so even aside from that, I --
Counsel: Even if he said that?
Court: Right. But I’ll stipulate with
you if that will help, if
that’s what he’s telling you
folks now.
12
The district court also explained that it did not
consider the confidential informant’s testimony dispositive of the
amount carried because the conspirators may have simply told the
informant that he would be carrying 1,100 pounds in order to make
him “feel less afraid to get involved,” or perhaps because they
wanted to pay him less for his role in the conspiracy.
-20-
Well, let me repeat the prior comments, but add one
thing. Because, Mr. Perez [counsel for Beco], you’ve
really raised two different theories, and so let me just
comment. First of all, is the theory that maybe a good
chunk of this marijuana, more than half of it, was
already at the ranch.
I would say to you the following: As I understand this
record, there is absolutely no dispute at all that --
when the agents went in to this ranch, shortly after the
truck went in and when the bust was made, that they --
that there was 3,160 pounds there.
So theory number one is that two-thirds of that was
already at this ranch, that all of this operation from
the South, which involved these people here in Zapata
coordinating with people from San Diego, meeting people
in Mathis, arranging people to meet in San Antonio,
following this whole convoy situation, all of which is in
the record, was all done just to bring a little extra
amount, or maybe 7 or 800 pounds, to a load that was
already there over [2,000] pounds.
Number one, I don’t think that makes any sense. Number
two, the -- Becerra, although granted, he vacillates in
and out of what his position is. But he has said to the
probation office that it was a full truck loaded to the
[g]ills, and that there was nothing else there when he
off loaded it. Number three, the truck, as I said, was
on constant surveillance.
For obvious reasons, Judge Kazen refused to give any
credibility to the alleged change of heart by Becerra))made while
Becerra and the other defendants were in custody awaiting
sentencing, where the only remaining issue was the amount of
marijuana for which the defendants would be sentenced.
Particularly because Becerra was the only defendant who could
testify to the offloading and he had already indicated in
statements to the FBI and the probation officer that the load was
over 3,000 pounds, Judge Kazen refused to indulge Beco’s invitation
to recall Becerra.
In Salinas, Jr.’s sentencing hearing on April 1, 1994, his
-21-
counsel conceded that the November 5th delivery involved the
transportation of 3,000 pounds of marijuana. Again, he did not
claim that there was already 2,000 pounds of marijuana in the shed;
instead, he argued that the 3,000 pound load of marijuana was
packaged in two distinct portions in the trailer and that Salinas,
Jr. only intended to participate in a smaller conspiracy of 1,100
pounds of marijuana.13 Judge Kazen questioned Salinas, Jr.’s
counsel about his theory that Salinas, Jr. should not be sentenced
on the entire amount of marijuana as follows:
Court: Okay. And Becerra, however, so we
can complete the story, also said
that when he arrived at the Kirchner
ranch to off-load the marijuana from
this truck, he loaded it in a shed
at the ranch, correct?
Probation Officer: That’s right.
Court: Then there was nothing else in the
shed. And when it was off-loaded,
it’s undisputed by everybody that
there was 3,000 pounds in that
trailer, correct?
Counsel: I -- I understand.
Court: What -- with that and I’m not -- I’m
not criticizing you. I know there’s
different ones that raise this
point, but they all have different
theories about it. What’s your
theory?
13
The probation officer had testified that Becerra told him
that there were two distinct portions of marijuana in the trailer:
“[O]ne of the portions was stacked very neatly and covered while
the rest of the tanker trailer bundles were -- seemed to be
disorganized and simply just thrown in there.”
-22-
Counsel: My theory is, it is evident from the
tapes that were -- in the
Government’s possession and
introduced at trial, that my client
was talking to -- between 700 to
1,100 pounds, period. In fact, as
part of that same tape introduced at
trial, after that had -- tape made
after the bust itself, my client
states -- or Aureliano, Jr. states
that had he been involved in 3,000
pounds he would have done it this
other way, you see, indicating a
complete lack of knowledge, and I
understand that a reasonable
foreseeability on that is -- is a
standard.
However, it was evident that he
was still of the impression that you
were dealing only in this lesser
amount. And I know it’s hard to get
around that fact that there was
3,000 pounds, period, you know.
There’s -- but I think that perhaps
a legal argument could be made that
his intention was to get involved
between 700 to 1,100. That he was
involved I think that’s a matter of
-- of record, not involved in the
loading itself; therefore, was
unaware. Now, we have two separate
packaging -- or not packaging, but
loading structures. I don’t know if
it was -- the packaging was the same
or not. There was no information
with regards to that, but two
separate, different loadings. And I
think that weighs strongly on -- on
Aureliano, Jr.’s involvement as to
the amounts, Your Honor.
Once again, Salinas, Jr.’s counsel did not argue that there was any
marijuana in the shed, and conceded that “it’s hard to get around
that fact that there was 3,000 pounds, period.” Judge Kazen
rejected Salinas, Jr.’s legal claim that he should not be held
-23-
legally responsible for the entire amount of marijuana that he
assisted in transporting to the Kirchner Ranch. See U.S.S.G.
§ 1B1.3(a)(1)(A) (providing that defendant is accountable for “all
acts and omissions committed, aided, abetted, counseled, [or]
commanded” without respect to “reasonable foreseeability”); see
also United States v. Carreon, 11 F.3d 1225, 1237 & n.60 (5th Cir.
1994) (noting that “reasonable foreseeability” limitation does not
apply to conduct for which the defendant is an aider and abettor).
Although Salinas, Jr. ordered a transcript of his sentencing
hearing, the record indicates that it was never produced for the
prior panel.
Judge Kazen’s decision to rely on the conclusions in the PSR
to sentence the defendants based on 3,160 pounds of marijuana was
proven correct at Becerra’s sentencing on April 6, 1994. At that
hearing, Becerra admitted in open court that the shed was empty
when he began to unload the marijuana from the trailer and that he
told this to Officer Chavez during his PSR investigations. Becerra
explained his recent vacillation to Judge Kazen by stating that
while he was in jail, the other defendants told him to say that he
unloaded only 1,000 pounds of marijuana and that there was already
marijuana in the shed when he began to unload the trailer. Becerra
also informed Judge Kazen that someone in the jail had threatened
the safety of his family if he did not change his story about the
amount of marijuana that he transported. The following exchange
-24-
occurred between Judge Kazen and Becerra:
Court: -- there’s no question that there
was 3,000 pounds in that tanker.
Mr. Chavez [the probation officer]
says that you admitted that you
unloaded --
Becerra: Yeah. I admitted I unload, but I --
Court: And that that’s -- that it was all
there and that you’re -- the
codefendants are conjuring up this
theory that it was -- half of it or
more was already at the ranch, and
you just added a little bit.
Becerra: They -- they had -- they’ve been
telling me that over there in jail,
to say this, to say that. I’m just
going to say what I seen there.
Like I told Mr. Chavez [the
probation officer], there was
nothing in the -- in the shed. The
only thing that was there was hay
and some dog food or horses and --
but I didn’t know what was the
amount on there or anything in the
truck.
Court: And -- and for that matter, I don’t
really have any reason to quarrel
with that. I mean -- you know, I
don’t know what you knew or didn’t
know, but it doesn’t necessarily
surprise me that they didn’t spell
out to you and say, “Mr. Becerra,
now, we want you to help us and
there’s exactly 3,000 pounds in
there.” The sense I get is that
maybe nobody really knew.
The district court ultimately sentenced all of the defendants
based on 3,160 pounds of marijuana.14 All of the defendants
14
Based on the quantity of marijuana, the district court
imposed the following sentences:
-25-
appealed their convictions to our court, and all but Leal
challenged the district court’s use of 3,160 pounds of marijuana
for sentencing. Significantly, neither the transcript of Becerra’s
sentencing hearing nor the content of his FBI statements was put
before our prior panel.
II
A
In our prior opinion, although we affirmed the convictions of
all the defendants, we reversed and vacated the sentences because
we found that “[t]he district court’s findings as to the amount of
marijuana to attribute [were] not supported by a preponderance of
the evidence.” The panel rested its conclusion on the defendants’
1. Salinas, Sr. - 240 months in the custody of the Bureau
of Prisons, a fine of $3,000 and a supervised release
term of ten years.
2. Leal - 240 months in the custody of the Bureau of
Prisons, a $2,000 fine and a supervised release term of
ten years.
3. Salinas, Jr. - 168 months in the custody of the Bureau
of Prisons, a fine of $2,500 and a supervised release
term of five years.
4. Becerra - 135 months in the custody of the Bureau of
Prisons, a fine of $1,000 and a supervised release term
of five years.
5. Ramirez - 125 months in the custody of the Bureau of
Prisons, a fine of $2,500 and a supervised release term
of five years.
6. Beco - 125 months in the custody of the Bureau of
Prisons, a fine of $2,500 and a supervised release term
of five years.
-26-
assertions (in their briefs on appeal) that there was no evidence
that the trailer contained all 3,160 pounds discovered at the shed.
As demonstrated above, however, there was substantial evidence that
the trailer contained all 3,160 pounds discovered at the shed; the
problem for the prior panel was that little of it was in the
appellate record. Although Becerra appealed his sentence and
conviction, he failed to order a transcript of his sentencing
hearing. In doing so, he violated our well established rule that
a defendant’s failure to order those parts of the record containing
errors prevents the court from reviewing the error. See FED. R.
APP. P. 10(b)(2) (“If the appellant intends to urge on appeal that
a finding or conclusion is unsupported by the evidence or is
contrary to the evidence, the appellant shall include in the record
a transcript of all evidence relevant to such finding or
conclusion.”); see also United States v. Narvaez, 38 F.3d 162, 167
(5th Cir. 1994) (“As the district court relied upon such evidence
and as Narvaez failed to order that portion of the record, this
court is precluded from reviewing his allegation.”). The panel,
however, did not enforce the rule and proceeded to review Becerra’s
claim of error. In addition to Becerra’s failure to order the
sentencing hearing transcript, neither the government nor any of
the defendants told the prior panel about the events that took
place at Becerra’s sentencing hearing (i.e., that Becerra told
Judge Kazen that the shed was empty when he began unloading the
-27-
trailer and that the other defendants were telling him to lie about
it). Furthermore, the government failed to inform the panel that
in his confessions to the FBI, Becerra admitted that he was told
that the delivery would be 3,000 pounds.
Consequently, because the parties failed to provide the panel
with critical information, the panel opinion focused on the
testimony at trial (rather than all of the events relevant to the
district court’s sentencing decision): “The testimony at trial as
to the amount of marijuana to be transported differed from the
amount actually seized. None of the testimony indicated over 3,000
pounds of the substance.” Leal, 74 F.3d at 607. These conclusions
were correct to the extent that they were based on the portion of
the record which the panel had the opportunity to review: the
government did not put forward any testimony at trial regarding the
3,160 pounds (which, as we noted above, it did not have to do
because the weight is not an element of the offense, see supra at
9 n.6). The panel opinion continued, however, explaining what it
believed to be the district court’s reasons for sentencing the
defendants on the entire amount found in the shed:
The [district] court found it incredulous that the
defendants would engage in such a complicated scheme to
contribute only a third of the amount to an existing
stash. Furthermore, the court surmised that the
defendants may have understated the actual amount to the
CI for fear he would demand greater compensation given
the true value of his services to the operation.
Id. at 607-08.
-28-
Because of the inadequate record before it, the prior panel
concluded that the district court’s “suppositions” were based on
“intuition alone.” Id. at 608 n.1. The prior panel found that
“[t]he disparity in the evidence between the defendants activities
and the amount of drugs seized [was] not adequately explained. The
reasons the court gave [were] mere rationalizations, not specific
enough to assure us sufficiently that the defendants are reasonably
responsible for all the marijuana found at the ranch.” Id. at 608.
Thus, the opinion “vacate[d] the sentence and remand[ed] to the
district court for resentencing, attributing to the defendants the
amount of marijuana related in the testimony at trial.”
Significantly, the opinion also specified that the testimony at
trial “ranged from 500 pounds to a little over 1,000 pounds. In
particular, the CI said that he was told the defendants agreed to
deliver 1,100 pounds of the substance by tanker/trailer.” Id. at
607.
B
The government filed a petition for panel rehearing in Leal,
arguing that the district court did not commit clear error when it
attributed 3,160 pounds to the defendants. Instead of setting
forth the significant facts that had been omitted from both its
brief on appeal and the appellate record (as it has done in this
appeal), the government again failed to bring any of the critical
facts to the attention of the panel. In contrast to its position
-29-
here (i.e., that the evidence clearly demonstrates that the
defendants transported 3,160 pounds), the government argued in its
petition for rehearing simply that “there were two permissible
constructions of the evidence”:
There are two plausible views of the evidence as it
relates to the amount of marijuana actually transported
by the conspirators in the truck. First, the shed at the
ranch contained no more than 1,500 pounds of marijuana
when the truck entered the ranch on November 5. . . .
While this scenario is plausible, it is most unlikely.
There is no evidence in the record that marijuana was in
the shed when the truck arrived, and Becerra did not tell
the agents this when he confessed. . . .
Second, the shed was empty when the truck arrived, and
the amount of marijuana unloaded by Becerra and Leal was
in excess of 3,100 pounds. . . . It is also possible
that the conspirators did not know exactly how much
marijuana they were going to transport until the last
minute.
In any event, either scenario is possible. The
district court chose the second possibility, and cannot
have been clearly erroneous in doing so.
The government’s argument demonstrates that it wholly failed
to bring the relevant facts to the attention of the panel. Indeed,
judging from the contents of its petition for panel rehearing, it
appears that the government was completely unaware of them. Not
surprisingly, the prior panel rejected the government’s petition
for panel rehearing. Thereafter, the court issued six separate
(but identical) mandates))a separate mandate for each defendant,
including Leal))stating that “the judgment of the District Court in
this cause is affirmed, and the cause is remanded to the District
Court for further proceedings in accordance with the opinion of
this Court.” The government did not seek a stay of the mandate
-30-
with respect to the remand of Leal’s or any defendant’s sentence.
III
Because this case reaches us on appeal for the second time, we
must consider the implications of our prior opinion in Leal and the
well-settled “law of the case” doctrine. “Under the ‘law of the
case’ doctrine, an issue of law or fact decided on appeal may not
be reexamined either by the district court on remand or by the
appellate court on a subsequent appeal.” Illinois Cent. Gulf R.R.
v. International Paper Co., 889 F.2d 536, 539 (5th Cir. 1989).
This self-imposed doctrine “serves the practical goals of
encouraging finality of litigation and discouraging ‘panel
shopping.’” Id. at 539; see also Lehrman v. Gulf Oil Corp., 500
F.2d 659, 662 (5th Cir. 1974). “It is predicated on the premise
that ‘there would be no end to a suit if every obstinate litigant
could, by repeated appeals, compel a court to listen to criticisms
on their opinions or speculate of chances from changes in its
members.’” White v. Murtha, 377 F.2d 428, 431 (5th Cir. 1967)
(quoting Roberts v. Cooper, 61 U.S. (20 How.) 467, 481, 15 L. Ed.
969 (1857)). The law of the case doctrine, however, is not
inviolate. We have explained that “a prior decision of this court
will be followed without re-examination . . . unless (i) the
evidence on a subsequent trial was substantially different, (ii)
controlling authority has since made a contrary decision of the law
applicable to such issues, or (iii) the decision was clearly
-31-
erroneous and would work a manifest injustice.” North Mississippi
Communications, Inc. v. Jones, 951 F.2d 652, 656 (5th Cir. 1992);
see also City Pub. Serv. Bd. v. General Elec. Co., 935 F.2d 78, 82
(5th Cir. 1991); Lyons v. Fisher, 888 F.2d 1071, 1074 (5th Cir.
1989); Daly v. Sprague, 742 F.2d 896, 901 (5th Cir. 1984).
A corollary of the law of case doctrine, known as the mandate
rule, provides that a lower court on remand must “implement both
the letter and the spirit of the [appellate court’s] mandate,” and
may not disregard the “explicit directives” of that court. See
Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363, 1370 (5th Cir. 1992).
“The mandate rule simply embodies the proposition that ‘a district
court is not free to deviate from the appellate court’s mandate.’”
Barber v. International Bhd. of Boilermakers, 841 F.2d 1067, 1070
(11th Cir. 1988) (quoting Wheeler v. City of Pleasant Grove, 746
F.2d 1437, 1440 n.2 (11th Cir. 1984)); see also Harris v. Sentry
Title Co., 806 F.2d 1278, 1279 (5th Cir. 1987) (“It cannot be
disputed that ‘when the further proceedings [in the trial court]
are specified in the mandate [of the Court of Appeals], the
district court is limited to holding such as are directed.’”)
(alterations in original) (quoting 1B MOORE’S FEDERAL PRACTICE ¶
0.404(10), at 172 (1984)); Newball v. Offshore Logistics Int’l, 803
F.2d 821, 826 (5th Cir. 1986) (holding that “a mandate controls on
all matters within its scope”).
Consequently, unless one of the exceptions to the law of the
-32-
case doctrine applies, the district court was bound to follow our
mandate and to resentence the defendants based on the testimony at
trial. See, e.g., Johnson, 965 F.2d at 1370 (“The ‘mandate rule’
is a specific application of the ‘law of the case’ doctrine.”)
(internal quotation marks omitted); see also Litman v.
Massachusetts Mut. Life Ins. Co., 825 F.2d 1506, 1516 (11th Cir.
1987) (en banc) (“If circumstances after remand fall into one of
the three exceptions to the mandate rule, the district court has
greater discretion to act. If the circumstances after remand do
not fall into one of the exceptions . . . then the district court
is constrained to follow the mandate issued by the appellate
court.”). The government urges that both the first and third
exceptions to the law of the case doctrine apply to the case at
hand.15 We address each argument in turn.
15
The government also argues that the district court was
not bound by our mandate to resentence the defendants based on “the
testimony at trial” (and that it could, instead, consider
additional evidence which the government incidentally failed to put
before the prior panel). We reject the government’s attempt to
circumvent the narrow exceptions to the mandate rule and the
explicit language of our mandate. See Cole Energy Dev. Co. v.
Ingersoll-Rand Co., 8 F.3d 607, 609 (7th Cir. 1993) (“[E]xplicit
directives by [an appellate] court to [a] lower court concerning
proceedings on remand are not dicta.”); Litman v. Massachusetts
Mut. Life Ins. Co., 825 F.2d 1506, 1511 (11th Cir. 1987) (en banc)
(“When an appellate court issues a specific mandate it is not
subject to interpretation; the district court has an obligation to
carry out the order. A different result would encourage and invite
district courts to engage in ad hoc analysis of the propriety of
appellate court rulings.”).
The government does not argue that the terms of our mandate
were vague or unclear. The argument that the prior panel should
have allowed the district court to resentence the defendants based
-33-
A
At the 1996 resentencing, the district court rejected the
government’s belated attempt to introduce Becerra’s January 18th
statement because our mandate ordered the district court to
resentence the defendants based on “the testimony at trial.” The
government argues that the district court erred in rejecting the
introduction of additional evidence because the evidence on remand
was substantially different. We reject the government’s attempt to
expand this law of the case exception to correct its own oversight
in failing to present the critical evidence to the prior panel.16
on any evidence that it found relevant))whatever strength it may
have, cf. United States v. Kinder, 980 F.2d 961, 963 (5th Cir.
1992) (“‘[I]n the interest of truth and fair sentencing a court
should be able on a sentence remand to take new matter into account
on behalf of either the government or the defendant.’”)))should
have been presented to the prior panel in the government’s petition
for panel rehearing or a motion to stay the mandate. Thus, unless
an exception to the law of the case doctrine applies, the district
court was bound to resentence the defendants based on “the
testimony at trial.”
16
In an attempt to characterize Becerra’s FBI confessions
as “new” evidence, the government asserts in its brief that “[t]he
district court did not learn of the statements Becerra made to the
FBI until resentencing in 1996.” This assertion is both wrong and
irrelevant. First, before trial, Judge Kazen held an extensive
hearing on Becerra’s motion to suppress the very statements that
the government argues he did not learn about until resentencing.
See supra at 7-8. Furthermore, at trial, defense counsel
explicitly requested that Judge Kazen read Becerra’s FBI statements
for himself. See supra at 12 n.7. Second, even assuming that
Judge Kazen did not know about the contents of the FBI statements,
the government’s failure to present this evidence to the district
court does not justify or explain its similar failure to put this
evidence before the prior panel))particularly in light of the fact
that Becerra’s motion to suppress his FBI statements was one of the
primary issues in the first appeal. See Lyons, 888 F.2d at 1075;
-34-
The government fails to provide any reason why it did not, or
could not, present Becerra’s FBI statements to the prior panel in
either the first appeal or the motion for reconsideration. See
Lyons, 888 F.2d at 1075 (“The truth is [] that Fisher flatly failed
in the prior proceeding, for reasons best known to him, to adduce
evidence of any consideration, despite his having both the reason
and opportunity to do so.”); Litman, 825 F.2d at 1516 (“Mass
Mutual’s failure to seek modification of our decision had the
effect of binding the district court to our instructions as set
forth in the clear mandate.”). Moreover, our prior opinion did not
leave the issue open for decision nor authorize the district court
to consider additional evidence. “We have held that the
‘substantially different’ evidence exception to the law-of-the-case
doctrine does not apply where a prior appeal has not left the issue
open for decision.” Lyons, 888 F.2d at 1075; see also Barber, 841
F.2d at 1072 n.5 (“The law of the case exceptions apply only when
substantially different evidence comes out in the course of a
subsequent trial authorized by the mandate.”); Goodpasture, Inc. v.
M/V Pollux, 688 F.2d 1003, 1006 n.5 (5th Cir. 1982) (“[T]he
exception to law of the case where ‘evidence on a subsequent trial
[is] substantially different’ is inapplicable where by the prior
appeal the issue is not left open for decision.’”) (quoting
National Airlines, Inc. v. International Ass’n of Machinists, 430
Barber, 841 F.2d at 1072-73.
-35-
F.2d 957, 960 (5th Cir. 1970)).
The prior panel specifically instructed the district court to
resentence the defendants based on “the testimony at trial.” Cf.
Barber, 841 F.2d at 1072 n.5 (rejecting application of the
“substantially different evidence” exception because “[t]he fact
remains [] that there should have been no opportunity for
substantially different evidence to appear, as Sharit’s referrals
were not to be considered on remand”). Thus, similar to our
conclusion in Lyons, “the district court properly denied [the
government] the right on remand to offer evidence that [it] had had
every opportunity and incentive to produce at the earlier
proceeding.” Lyons, 888 F.2d at 1075; see also Baumer v. United
States, 685 F.2d 1318, 1321 (11th Cir. 1982) (refusing to apply
“substantially different evidence” exception because “[t]here is
nothing in the record to indicate that the evidence produced at the
hearing after remand was unavailable to the taxpayers during the
first trial”).
B
The government also argues that the district court was not
bound by the law of the case because our prior decision is “clearly
erroneous” and the error works a “manifest injustice.” Whether
this exception applies is a close question. As demonstrated, the
prior opinion is the result of critical facts being omitted from
the appellate record by both the government and the defendants,
-36-
and, to a lesser extent, the panel’s decision to proceed without
the transcripts of Becerra’s and Salinas, Jr.’s sentencing
hearings.17
Our decision in Lyons v. Fisher presents a relatively
analogous situation and a useful guide to the case at hand. See
Lyons, 888 F.2d at 1073. In Lyons, our first opinion had reversed
the district court’s order granting summary judgment in favor of
the defendant on an alleged land transaction. We concluded (on the
first appeal) that the particular land transfer in question was an
“absolute nullity” because there was a lack of consideration for
the transfer and remanded for “further proceedings consistent with
this opinion.” Id. On remand, the defendant filed an affidavit
with the district court asserting that he had been paid $450 as
17
Indeed, the government argued in the first appeal that
the panel should not consider Becerra’s and Salinas Jr.’s claims of
sentencing error because they failed to provide the relevant
portions of the record. See Leal, 74 F.3d at 607. The
government’s argument is backed by a forceful array of precedent.
See, e.g., United States v. Narvaez, 38 F.3d 162, 167 (5th Cir.
1994) (holding that a defendant’s failure to order those parts of
the record that he contends contain error will prevent us from
reviewing that assignment of error); United States v. Hinojosa, 958
F.2d 624, 632 (5th Cir. 1992) (same); United States v.
Juarez-Fierro, 935 F.2d 672, 675 n.1 (5th Cir. 1991) (same); United
States v. O'Brien, 898 F.2d 983, 985 (5th Cir. 1990) (same); see
also FED. R. APP. P. 10(b)(2) (requiring that appellant provides
transcript “of all evidence relevant to [the district court’s]
finding or conclusion”). Once again, the government failed to
raise this issue in its petition for panel rehearing, and more
importantly, could have solved the problem itself by simply
informing the prior panel of the substance of Becerra’s sentencing
hearing (i.e., that he confessed to Judge Kazen that the shed was
empty).
-37-
consideration for the land transfer, and thus, he argued, our panel
erred in concluding that the transfer was void for lack of
consideration. The district court, however (similar to the
district court here), refused to consider this “new” evidence,
holding that the law of the case doctrine precluded it from further
considering the question of the validity of the consideration. On
the second appeal, the defendant argued that the clearly erroneous
and manifest injustice exception applied. We disagreed and
concluded that the defendant could not demonstrate “manifest
injustice” because he was the one at fault for failing to put forth
the relevant evidence in the first appeal. We explained that
We might be persuaded that manifest injustice had
occurred as a result of the alleged error if Fisher had
presented such evidence in the prior proceeding and the
previous panel had disregarded the evidence because of a
misunderstanding of the law, or if consideration had
become an issue only after it reached the appellate level
and Fisher had had no opportunity in the prior proceeding
to adduce such evidence.
Id. at 1075. However, because “Fisher flatly failed in the prior
proceeding, for reasons best known to him” to adduce the purported
new evidence, “despite his having both the reason and the
opportunity to do so,” we rejected his claim of manifest injustice.
See id.
Similarly, in the case at hand, the government now presents to
this court))for the first time))Becerra’s confession to the FBI and
the substance of his sentencing hearing before Judge Kazen. While
both indeed support the district court’s first sentencing decision,
-38-
the government “flatly failed” to adduce this evidence in the first
appeal. See id.; see also Barber, 841 F.2d at 1072 n.5 (refusing
to allow plaintiffs to put forth “new” evidence that had not been
offered at the first trial because “it is well settled that
plaintiffs in all cases are to be given their day in court, nothing
less but nothing more. Barber was given such an opportunity, as
the case was fully tried the first time, and the ‘new’ records . .
. were available then.”). We recognize that Becerra shoulders
considerable blame for failing to order the transcript of his
sentencing hearing and that our prior decision grants the
defendants a reprieve from their original sentence. We wish to
emphasize that this Court does not countenance Becerra’s failure to
provide the relevant transcripts of his sentencing hearing and that
this case should serve as a significant reminder of the rationale
for the waiver rule. See FED. R. APP. P. 10(b)(2); see also supra
at 32 n.17.
Nonetheless, the government cites no case where our court (or
any court, for that matter) has found that a prior opinion works a
manifest injustice where the party claiming injustice had all the
means and incentive to provide the relevant information in the
first appeal. Cf. Lyons, 888 F.2d at 1075 (refusing to find
exception to law of the case doctrine because appellant had “every
opportunity and incentive to produce [the relevant evidence] at the
earlier proceeding”). Furthermore, the government makes no
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argument why this “extraordinary” exception to the law of the case
doctrine should apply to the government’s failure to provide
relevant evidence in a criminal case. “As this Court has noted in
previous cases, ‘In this circuit, . . . the law-of-the-case
doctrine is supplanted by our firm rule that one panel cannot
disregard the precedent set by a prior panel even though it
perceives error in the precedent.” Harris, 806 F.2d at 1282
(alterations in original) (quoting United States v. 162.20 Acres of
Land, 733 F.2d 377, 379 (5th Cir. 1984)). Even if we may have
reached a different result than our prior panel on the incomplete
record that was before them, our conclusion does not rise to the
extraordinary level required to find a manifest injustice. See
City Public Serv. Bd., 935 F.2d at 82 (“Only in extraordinary
circumstances may this court sustain a departure from the ‘law of
the case’ doctrine on the ground that a prior decision was clearly
erroneous. Mere doubts or disagreement about the wisdom of a prior
decision of this or a lower court will not suffice for this
exception.”); Parts & Elec. Motors, Inc. v. Sterling Elec., Inc.,
866 F.2d 228, 233 (7th Cir. 1988) (“To be clearly erroneous, a
decision must strike us as more than just maybe or probably wrong;
it must, as one member of this court recently stated . . . strike
us as wrong with the force of a five-week-old, unrefrigerated dead
fish.”).
Ultimately, therefore, because blame also falls largely at the
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feet of the government for failing to point out to the prior panel
Becerra’s confessions to the FBI and the probation officer, or his
statements to Judge Kazen at the April 6th sentencing hearing, we
decline to find that our prior opinion results in a manifest
injustice. See Lyons, 888 F.2d at 1075-76 (rejecting application
of manifest injustice exception because “[i]t was only after this
court rendered its decision, and it became apparent that
consideration was indeed the win-lose issue of this case” did the
appellant attempt to introduce the relevant evidence); Barber, 841
F.2d at 1072 n.5 (refusing to find exception to the law of the case
doctrine when failure to bring relevant evidence was the
appellant’s own fault). Our conclusion in Lyons is particularly
apt here: “[G]iven [the appellant’s] opportunity and his puzzling
failure to adduce such evidence earlier, we hold that [the
appellant] has not suffered ‘manifest injustice’ simply because the
law-of-the-case doctrine may now preclude his tardy introduction of
that evidence.” Lyons, 888 F.2d at 1075.
Consequently, because none of the exceptions to the law of the
case doctrine apply, the district court properly followed our prior
opinion in resentencing the defendants.
IV
The government also contends that the district court lacked
jurisdiction to resentence Leal, claiming that “Leal’s sentence was
not vacated by this court.” We disagree, and note that the
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government itself concedes the very point in its brief.18
The existence of jurisdiction is a question of law that we
review de novo. See United States v. Teran, 98 F.3d 831, 833-34
(5th Cir. 1996). As a general matter, a “district court regain[s]
jurisdiction over [a] case upon our issuance of the mandate.”
Arenson v. Southern Univ. Law Ctr., 963 F.2d 88, 90 (5th Cir.
1992); see also United States v. Dozier, 707 F.2d 862, 864 n.2 (5th
Cir. 1983). Unless recalled, that mandate “controls on all matters
within its scope.” Newball, 803 F.2d at 826. No party having
moved to stay or recall this mandate, our inquiry into the basis
for the district court’s jurisdiction to resentence Leal is at an
end. See Leroy v. City of Houston, 906 F.2d 1068, 1074 (5th Cir.
1990) (holding that an appellate mandate retains its force unless
recalled, because even if some portions of the mandate appear to be
“the result of inadvertence on the part of the appellate court,”
the “appropriate procedure” in that situation is to “move this
Court to recall its mandate”). In the face of the government’s
explicit concession, see supra at 36 n.18, as well as the fact that
a specific mandate issued for Leal,19 we reject the government’s
18
In its brief, the government states that this court
“vacated the sentences of all defendants, including Leal, and
remanded for resentencing.” (emphasis added). The government does
not attempt to explain its later contrary assertion.
19
As noted above, see supra at 26, separate judgments
issued as to each defendant, and the particular judgment captioned
“United States versus Victor Leal,” states that “the cause is
remanded to the district court for further proceedings in
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claim that the district court lacked jurisdiction to resentence
Leal following the issuance of our mandate in his case. See
Newball, 803 F.2d at 826 (“When an appellate mandate is issued, a
district court reacquires jurisdiction.”).
V
We turn now to Becerra’s contentions on appeal, specifically
his assertion that the district court erred in denying him a four-
level reduction for minimal participation and a three-level
reduction for acceptance of responsibility. The government asserts
that Becerra failed to raise these sentencing issues on the first
appeal, and that the law of the case therefore bars our
consideration of these abandoned claims. We agree. “[A] legal
decision made at one stage of a civil or criminal case,
unchallenged in a subsequent appeal despite the existence of ample
accordance with the opinion of this Court.” The opinion, in turn,
states that “[w]e vacate the sentence and remand to the district
court for resentencing, attributing to the defendants the amount of
marijuana related in the testimony at trial.” Leal, 74 F.3d at 608
(emphasis added). Even if our prior opinion should not have given
Leal the benefit of an argument he did not raise, but cf. FED. R.
CRIM. P. 52(b) (“Plain errors or defects affecting substantial
rights may be noticed although they were not brought to the
attention of the court.”), the government should have raised this
argument with a motion to stay the mandate. See 5TH CIR. R. 41.2
(providing that a mandate may be recalled to “prevent injustice”);
see also Leroy v. City of Houston, 906 F.2d 1068, 1075 (5th Cir.
1990) (refusing to treat an appeal following remand as a motion to
recall the prior mandate); Barber, 841 F.2d at 1071 n.2 (refusing
to consider additional argument on second appeal when “counsel
requested neither rehearing by the panel nor rehearing by the court
en banc”); Litman, 825 F.2d at 1513 (explaining that appellee’s
failure to seek any modification of appellate court’s prior
decision limited the issues to those specified on remand).
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opportunity to do so, becomes the law of the case for future stages
of the same litigation, and the aggrieved party is deemed to have
forfeited any right to challenge that particular decision at a
subsequent date.” United States v. Bell, 988 F.2d 247, 250 (1st
Cir. 1993). Because Becerra did not challenge the district court’s
minimal participant and acceptance of responsibility decisions in
his first appeal, we need not consider those belated challenges
here. Even if we were to reach the merits of Becerra’s
contentions, they are without merit.
A
Whether Becerra was a “minimal participant,” entitled to a
four-level reduction pursuant to U.S.S.G. § 3B1.2(a), or a “minor
participant,” entitled to a two-level reduction pursuant to
U.S.S.G. § 3B1.2(b), is a factual determination that we review only
for clear error. See United States v. Pofahl, 990 F.2d 1456, 1485
(5th Cir. 1993). Minimal participants are those who demonstrate a
“lack of knowledge or understanding of the scope and structure of
the enterprise.” See United States v. Mitchell, 31 F.3d 271, 278
(5th Cir. 1994) (citing U.S.S.G. § 3B1.2, cmt. (n.1)). Minor
participants are those “less culpable than most other participants,
but whose role could not be described as minimal.” Id. (citing
U.S.S.G. § 3B1.2, cmt. (n.3)).
The testimony at trial established that Becerra knew that he
was involved with several other people in an attempt to transport
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a load of marijuana from Laredo, Texas to Bulverde, Texas, and that
his role in the operation was to assist in the unloading of the
marijuana once it reached its final destination. Such knowledge
belies any claim to minimal-participant status. See Rosier v.
United States Parole Comm’n, 109 F.3d 212, 214 (5th Cir. 1997)
(holding that the defendant could not “reasonably assert that he
lacked knowledge or understanding of the enterprise to the degree
necessary to support a reduction as a minimal participant,” when
he admitted to driving the vehicle on other occasions in exchange
for “large sums of money,” and also admitted that he “suspected
that drugs were in the van”). Accordingly, we hold that the
district court did not err in determining that Becerra qualifies as
a minor rather than a minimal participant.
B
Whether Becerra “accepted responsibility” in a manner
sufficient to entitle him to a three-level reduction under U.S.S.G.
§ 3E1.1, is a determination requiring some judgment as to
credibility, and therefore will “not be disturbed unless it is
without foundation.” United States v. Maldonado, 42 F.3d 906, 913
(5th Cir. 1995). The guidelines indicate that an acceptance-of-
responsibility reduction is generally not appropriate when a
defendant “puts the government to its burden of proof at trial by
denying the essential factual elements of guilt, is convicted, and
only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1,
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cmt. (n. 2); see also United States v. Branch, 91 F.3d 699, 742
(5th Cir. 1996) (noting that “[w]hile conviction by trial does not
‘automatically preclude’ the availability of this [reduction], the
Guidelines contemplate that those cases in which the defendant both
accepts responsibility within the meaning of this section and goes
to trial will be ‘rare’”) (citations omitted).
The district court did not find Becerra to be one of those
“rare” defendants who goes to trial and yet may fairly be said to
have accepted responsibility. This determination, far from being
“without foundation,” appears well supported by the record. As
Becerra’s counsel noted in his closing statement to the jury:
“Ruben Gil Becerra is here before you and he’s maintaining his
innocence . . . [t]here’s no evidence to show that he possessed
marijuana, no evidence whatsoever.” On direct appeal, Becerra
continued to challenge the sufficiency of the evidence presented by
the government. Whatever assistance Becerra may have provided to
the FBI post-arrest and pre-trial, Becerra’s overall approach to
the charges against him does not demonstrate an acceptance of
responsibility. See id. (rejecting as “ludicrous” a defendant’s
suggestion that he was entitled to a three-level reduction for
acceptance of responsibility when he provided a post-arrest
statement, but contested his factual guilt at trial, and even
proclaimed at sentencing that “we still stand on our innocence”).
We therefore find no error in the district court’s denial of a
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three-level, acceptance-of-responsibility reduction.
VI
For the foregoing reasons, the judgment of the district court
is, in all respects, AFFIRMED.
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