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United States v. Walls , 148 F. App'x 286 ( 2005 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 05a0617n.06
    Filed: July 21, 2005
    No. 03-1272
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,                         )
    )
    Plaintiff - Appellee,                      )       ON APPEAL FROM THE
    )       UNITED STATES DISTRICT
    v.                                                )       COURT FOR THE EASTERN
    )       DISTRICT OF MICHIGAN
    FELIX WALLS,                                      )       SOUTHERN DIVISION
    )
    Defendant - Appellant.                      )               OPINION
    ______________________________                    )
    )
    )
    )
    )
    Before: MARTIN, GILMAN, and FRIEDMAN,* Circuit Judges.
    FRIEDMAN, Senior Circuit Judge. The appellant challenges his jury conviction on a
    cocaine distribution conspiracy and his sentence. He does not dispute the sufficiency of the
    evidence to support the conviction. His principal contentions are that his conviction subjected him
    to double jeopardy and that the statute of limitations barred the indictment on which he was
    convicted. We reject all of his challenges to his conviction, which we AFFIRM. We VACATE
    the sentence, however, in light of United States v. Booker, ___ U.S. ___ , 
    125 S. Ct. 738
    (2005), and
    REMAND for resentencing.
    *
    Judge Daniel M. Friedman, United States Senior Circuit Judge for the United States Court
    of Appeals for the Federal Circuit, sitting by designation.
    No. 03-1272
    United States v. Walls
    I
    There was evidence from which the jury could conclude that starting in 1985, the appellant
    Felix Walls and a partner established and operated, for eight or nine years, a large-scale drug
    distribution network. The operation primarily transported drugs between California and Detroit,
    Michigan. Walls and his partner recruited others to work for the operation. According to the
    evidence, this conspiracy involved large amounts of cocaine, and on several occasions members of
    the conspiracy carried more than $1 million in cash.
    Four successive, almost identical indictments were returned against Walls, and he was twice
    convicted. The initial indictment was returned in January 1993 and charged Walls and others with
    conspiracy to possess with intent to distribute and to distribute cocaine, in violation of 21 U.S.C. §
    846, and conspiracy to launder money, in violation of 18 U.S.C. § 371. The indictment alleged that
    the conspiracies were “continuing to the date of this indictment.” When Walls was arrested in late
    1994, the cases against his co-defendants had been concluded; an identical superseding indictment
    was returned that eliminated those defendants and added others.
    A jury convicted Walls under the two conspiracy counts. He was sentenced to concurrent
    terms of 360 months on the drug count and 60 months on the money laundering count. This court
    reversed his convictions and remanded his case for a new trial “[b]ecause Walls was prevented from
    calling a witness necessary to his defense, and because the trial court failed to adequately ascertain
    whether a juror had been tainted by the receipt of extraneous information, both in violation of the
    Sixth Amendment[.]” United States v. Walls, 
    162 F.3d 1162
    (table), 
    1998 WL 552907
    (6th Cir.
    1998) (unpublished opinion).
    2
    No. 03-1272
    United States v. Walls
    Prior to the remand, this Court had held in United States v. Ovalle, 
    136 F.3d 1092
    (6th Cir.
    1998), that the selection process used to select the grand juries that had returned the initial
    indictments against Walls was unconstitutional. A second superseding indictment of Walls was
    returned in December 1998, which was nearly identical to the previous indictment. The indictment
    erroneously included a count on which Walls had been acquitted in the prior trial, and contained
    minor changes not relevant to Walls’s case.
    On May 11, 1999, a “Third Superseding Indictment” was returned. It eliminated the count
    on which Walls had been acquitted. It also added the allegation that the drug conspiracy involved
    “5 kilograms or more of a mixture or substance containing a detectable amount of cocaine[.]” The
    previous indictment had referred to “controlled substances, to wit: cocaine, a Schedule II controlled
    substance” without specifying an amount. In all other respects, the Third Superseding Indictment
    was identical to the previous one.
    Walls moved unsuccessfully to dismiss this indictment under the Double Jeopardy Clause.
    In an interlocutory appeal, this Court held in an unpublished opinion that “[t]here simply is no
    double jeopardy bar to a retrial of Walls on the conspiracy charges set forth in the third superseding
    indictment.” Walls v. Hemingway, 27 Fed. Appx. 553, 
    2001 WL 1609895
    (6th Cir. 2001)
    (unpublished opinion).
    A jury once again convicted Walls on the two conspiracy counts. The jury found that “the
    quantity of cocaine involved in the overall scope of the conspiracy was: at least 5 kilograms, as
    alleged in the indictment[.]” In early 2003, the district court, applying the United States Sentencing
    Guidelines then in effect, sentenced Walls to concurrent terms of life imprisonment (drug
    3
    No. 03-1272
    United States v. Walls
    conspiracy) and 60 months (money laundering conspiracy). The district court found, as the
    probation officer’s report had recommended, that the conspiracy involved 1,200 kilograms of
    cocaine.
    II
    A. Walls contends that his second trial and conviction, following his first trial and
    conviction and this court’s reversal of that conviction, subjected him to double jeopardy. There is
    no double jeopardy, however, when the second trial results from a reversal on appeal of the first
    conviction for reasons other than insufficiency of the evidence. See, e.g., United States v. Tateo, 
    377 U.S. 463
    , 464–66 (1964) (citing Ball v. United States, 
    163 U.S. 662
    , 671-72 (1896)). This Court’s
    reversal of Walls’s first conviction was not for insufficiency of evidence, but because the trial court
    erred in the conduct of the proceeding. Indeed, in the prior interlocutory appeal, this Court so
    recognized when it ruled that “[t]here simply is no double jeopardy bar” to Walls’s retrial on the
    conspiracy charges. Walls v. Hemingway, 27 Fed. Appx. 553, 
    2001 WL 1609895
    (6th Cir. 2001)
    (unpublished opinion). That prior ruling is the law of the case. See Arizona v. California, 
    460 U.S. 605
    , 618 (1983) (stating that the law of the case doctrine “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”).
    B. Walls argues that the Third Superseding Indictment, under which he was convicted, was
    barred by the five-year statute of limitations in 18 U.S.C. § 3282, because it was returned after that
    statute had run and it cannot relate back to the earlier indictment because it broadened the original
    charges. Walls contends that the original drug charges were broadened by the allegation in the Third
    4
    No. 03-1272
    United States v. Walls
    Superseding Indictment that the conspiracy involved “5 kilograms or more” of cocaine, and also by
    the retention of the earlier indictment’s allegation that the conspiracies “continu[ed] to the date of
    this indictment.” We hold that the Third Superseding Indictment did not broaden the original
    charges, and that therefore the indictment relates back to the original indictment date and does not
    violate the Statute of Limitations. See United States v. Lash, 
    937 F.2d 1077
    , 1081 (6th Cir. 1991)
    (“It is well settled that a superseding indictment which does not broaden the charges against the
    defendants relates back to the date of the original indictment”).
    The addition of the “5 kilograms or more” of cocaine did not improperly broaden the original
    charge. This court considered a closely related fact pattern in United States v. Garcia, 
    268 F.3d 407
    ,
    414-16 (6th Cir. 2001), overruled on other grounds, United States v. Leachman, 
    309 F.3d 377
    (6th
    Cir. 2002). The Garcia defendants originally were indicted for conspiracy to distribute “various
    [unspecified] quantities of marihuana[.]” 
    Garcia, 268 F.3d at 409
    . After the statute of limitations
    had expired and the Supreme Court had decided Apprendi v. New Jersey, 
    530 U.S. 466
    (2000)
    (which required that a specific drug quantity that increased a criminal penalty beyond the statutory
    maximum be determined by a jury), a superseding indictment changed this wording to “various
    quantities totaling 1000 kilograms or more of 
    marijuana[.]” 268 F.3d at 410
    .
    The Garcia defendants challenged the superseding indictment as materially broadening the
    original charges and thus violating the statute of limitations. This Court held that the superseding
    indictment did not broaden the charges because, “while the defendants were not informed in the
    original indictment of the drug quantity for which the government would seek to hold them
    responsible, they did receive clear notice of this amount on several occasions soon after the original
    5
    No. 03-1272
    United States v. Walls
    indictment was issued.” 
    Id. at 414.
    This “clear notice” included a written “Notice of Enhanced
    Penalty” provided by the government less than two weeks after the indictment, and an
    “acknowledgment of indictment form” signed by the defendants indicating a sentencing range
    commensurate with the statutory sentencing range for 1,000 kilograms or more of marijuana. 
    Id. at 414-16;
    see also United States v. Smith, 
    197 F.3d 225
    , 229 (6th Cir. 1999) (holding that “notice”
    to defendants so they can “adequately prepare their defense” is the “touchstone” in determining
    whether a superseding indictment has impermissibly broadened the original).
    Here, as in Garcia, although the original indictment did not specify a particular amount of
    cocaine, Walls signed an “Acknowledgment of Indictment/Information” form following his initial
    arraignment which read, in pertinent part, “I know that if I am convicted or plead guilty, I may be
    sentenced as follows: Count One: Minimum mandatory 10 years to life[.]” This is the same penalty
    that 21 U.S.C. § 846 and § 841 provide for a violation involving “5 kilograms or more” of cocaine.
    § 841(b)(1)(A); see § 846 (referencing § 841 regarding penalties).           Walls, like the Garcia
    defendants, thus received “clear notice” of the possible penalties under the original indictment.
    Although the Garcia defendants received such notice “on several occasions” and Walls only once,
    that is not a valid basis for distinguishing Walls’s case. The critical inquiry in determining whether
    the superseding indictment improperly broadened the original charge is whether the defendant
    received clear notice of the possible penalty under that charge, not how often he received such
    notice.
    Walls’s other contention is that, by including the routine “continuation of the conspiracy”
    language, the Third Superseding Indictment improperly extended the term of the conspiracy beyond
    6
    No. 03-1272
    United States v. Walls
    that alleged in the original indictment. Walls has not been prejudiced by the repetition of this
    language, however, since the government introduced no evidence relating to the drug events that
    occurred after December 1994, when the earlier indictment was returned.
    C. Walls makes various other arguments that we have considered and rejected and that do
    not require discussion. Some of them are made in Walls’s pro se submission (which he made in
    addition to his counsel’s brief) and involve complaints about the conduct of his trial after he
    terminated his attorney’s services and defended himself pro se.
    III
    As noted, the jury found that the drug conspiracy involved “5 kilograms or more” of cocaine.
    The statutory penalty of imprisonment for such an offense ranges from 15 years to life.
    The presentence report concluded that the drug conspiracy involved 1,200 kilograms of
    cocaine. The district court so found. Based on that finding, the district court set the base level of
    the drug offense under the Sentencing Guidelines at 38, which it then increased to 43 (the maximum
    under the Guidelines), based on its findings that Walls had a leadership role in the conspiracy and
    had obstructed justice by giving false testimony. Walls objected to the finding that the conspiracy
    involved 1,200 kilograms of cocaine because the jury had found only that it involved “at least 5
    kilograms.” The court sentenced Walls to concurrent terms of life imprisonment on the drug count
    and 60 months on the money laundering count.
    After the sentence was imposed, the Supreme Court decided United States v. Booker, holding
    that under the Sixth Amendment “[a]ny fact (other than a prior conviction) which is necessary to
    support a sentence exceeding the maximum authorized by the facts established by a plea of guilty
    7
    No. 03-1272
    United States v. Walls
    or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable 
    doubt,” 125 S. Ct. at 756
    , and excising the statutory provision making the Guidelines mandatory. 
    Id. at 756-
    57. The Guidelines became “advisory” rather than “mandatory.” Although the sentencing court is
    “require[d] . . . to consider Guidelines ranges . . . [the Federal Sentencing Act] permits the court to
    tailor the sentence in light of other statutory concerns as well.” 
    Id. at 757
    (statutory citations
    omitted). Under this new sentencing regime, appellate courts are to review sentences for
    “reasonableness,” 
    id. at 766,
    rather than the former requirement of compliance with the Guidelines
    standards. See also United States v. Hazelwood, 
    398 F.3d 792
    , 800-02 (6th Cir. 2005); United States
    v. Barnett, 
    398 F.3d 516
    , 525-26, 530-31 (6th Cir. 2005).
    In these circumstances, and in light of Booker and our precedent, we conclude that Walls’s
    sentence was imposed in violation of the Sixth Amendment. Walls received several sentence
    enhancements that were neither admitted by him nor proved to a jury. Therefore, Walls’s sentence
    must be vacated and the case remanded to the district court for resentencing. See United States v.
    Oliver, 
    397 F.3d 369
    , 381 (6th Cir. 2005).
    CONCLUSION
    Walls’s conviction under the two conspiracy counts is affirmed. Walls’s sentence under the
    drug conspiracy count is vacated, and the case is remanded to the district court for resentencing on
    that count in accordance and consistent with this opinion.
    8