United States v. Kenneth Fairley ( 2019 )

Case: 18-60333 Document: 00515013881 Page: 1 Date Filed: 06/27/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-60333 June 27, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KENNETH E. FAIRLEY,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:16-CR-3-1
Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
In September 2016, a jury found Defendant-Appellant Kenneth E.
Fairley guilty of one count of conspiracy to commit theft of government funds
(Count One) and two counts of theft of government funds (Counts Two and
Three). The district court sentenced Fairley to concurrent terms of 36 months
imprisonment and 36 months supervised release plus a $30,000 fine and
$60,223.95 in restitution. On appeal, we vacated his convictions on Counts
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-60333 Document: 00515013881 Page: 2 Date Filed: 06/27/2019
No. 18-60333
Two and Three, affirmed his conviction on Count One, affirmed the district
court’s evidentiary and sentencing rulings, and remanded for “the district court
to determine whether Fairley’s sentence should change in light of the vacated
convictions.” United States v. Fairley, 880 F.3d 198, 202 (5th Cir.), cert. denied,
139 S. Ct. 321 (2018).
On remand, the district court denied Fairley’s request for a resentencing
hearing and preparation of an updated presentence report because the
underlying facts considered at sentencing remained the same, and the court
would have imposed the same sentence if it had considered Count One
separately from Counts Two and Three. The district court determined that the
only necessary modification to Fairley’s judgment was to reduce the mandatory
assessment fees from $300 to $100 to reflect the two vacated convictions.
In this appeal, Fairley claims that the district court erred by refusing to
conduct a full resentencing hearing. He clarifies that he is not challenging the
outcome of the district court’s determination of his sentence on remand.
We review de novo the district court’s application of a remand order and
its compliance with the law-of-the-case doctrine or mandate rule. United
States v. Teel, 691 F.3d 578, 583 (5th Cir. 2012). We have “adopted a restrictive
rule for interpreting the scope of the mandate in the criminal sentencing
context.” United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004) (internal
quotation marks, citation, and brackets omitted). “[O]nly those discrete,
particular issues identified by the appeals court for remand are properly before
the resentencing court.” Id. (internal quotation marks and citation omitted).
However, “once an issue is remanded for resentencing, all new matter relevant
to that issue appealed, reversed, and remanded, may be taken into
consideration by the resentencing court.” United States v. Marmolejo, 139 F.3d
528, 530 (5th Cir. 1998).
2
Case: 18-60333 Document: 00515013881 Page: 3 Date Filed: 06/27/2019
No. 18-60333
Although we did not specifically direct the district court to resentence
Fairley on remand, Fairley contends that our citation to, and parenthetical
quotation of, United States v. McRae, 795 F.3d 471, 483 (5th Cir. 2015), in a
footnote indicated our implied intent that the district court should conduct a
resentencing hearing. See Fairley, 880 F.3d at 202 & n.1. However, our
opinion in McRae did not specifically require a sentencing hearing on remand
in that case. See McRae, 795 F.3d at 473, 483-84.
On remand, the district court complied with our explicit mandate in
Fairley. The court modified Fairley’s sentence rather than imposing a new
sentence, so Fairley is not entitled to a full resentencing hearing or any
procedural accompaniments. See United States v. Clark, 816 F.3d 350, 353-58
(5th Cir. 2016); United States v. Erwin, 277 F.3d 727, 728-29 (5th Cir. 2001).
AFFIRMED.
3