U.S v. Bell

March 9, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1969
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD HARMON BELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Boudin, Circuit Judge.
Sarah Jennings Hunt for appellant.
F. Mark Terison, Assistant United States Attorney, with whom
Richard S. Cohen, United States Attorney, was on brief, for the
United States.
March 9, 1993
SELYA, Circuit Judge. This appeal asks, essentially, a
SELYA, Circuit Judge.
single question: Must a district court, at a reconvened
sentencing hearing following a defendant's successful appeal,
reexamine its explicit findings and conclusions on an issue not
raised in the appeal and which the defendant had previously
acknowledged to be correctly decided? Because we do not believe
that the district court is under so wide-ranging an obligation,
we affirm the judgment below.
I.
Prior Proceedings
Defendant-appellant Richard Harmon Bell pleaded guilty
to an indictment detailing six prior felony convictions and
charging him with receipt and possession of a firearm by a
convicted felon in violation of 18 U.S.C. 922(g)(1) (1988).
Believing that Bell met all three criteria for career offender
status,1 see, e.g., United States v. Fiore, F.2d ,
(1st Cir. 1992) [No. 92-1601, slip op. at 2] (enumerating
criteria), the presentence investigation report (PSI Report)
recommended imposition of sentence under U.S.S.G. 4B1.1 (Nov.
1991). While acknowledging that he had committed the gaggle of
crimes attributed to him in the PSI Report, Bell nonetheless
objected to the sentencing recommendation on the ground that the
crime of conviction was not a crime of violence.
1Bell was more than eighteen years old at the time he
perpetrated the offense of conviction; that offense was a crime
of violence; and his record contained six prior convictions for
violent felonies.
2
At the sentencing hearing, Bell renewed this argument.
Withal, his counsel declared no fewer than three times, and Bell
himself stated at least twice, that even if Bell's argument
prevailed, he would be subject to a mandatory minimum sentence of
15 years as his prior convictions were sufficient to place him
within the purview of the Armed Career Criminal Act (ACCA), 18
U.S.C. 924(e)(1) (1988) (stipulating that a defendant is
considered an armed career criminal if he has three prior
convictions for violent felonies and if the offense of conviction
is possession of a firearm which has traveled across state
lines). In the course of the sentencing proceedings, the
district court found that Bell had been convicted previously of a
half-dozen violent crimes listed in the PSI Report, including
assault and battery with a dangerous weapon, kidnapping, and
various episodes of robbery. The defendant lodged no objection
to this finding; to the exact contrary, statements made by both
Bell and his counsel patefied its accuracy. Nevertheless, the
court concluded that the offense of conviction was itself a crime
of violence as defined in U.S.S.G. 4B1.1 and sentenced Bell to
a prison term in excess of 30 years as a career offender rather
than to a shorter period of incarceration as an armed career
criminal.
Bell appealed the sentence. On appeal, his counsel
vigorously disputed whether a felon-in-possession conviction
could lawfully trigger the career offender guideline. Counsel
conceded, however, that "based upon [Bell's] prior record, he is
3
subject to an enhancement . . . of 15 years to life under the
Armed Career Criminal [Act]." We bought counsel's wares, holding
"that, where the offense of conviction is the offense of being a
convicted felon in knowing possession of a firearm, the
conviction is not for a `crime of violence' and that, therefore,
the career offender provision of the federal sentencing
guidelines does not apply." United States v. Bell, 966 F.2d 703,
703 (1st Cir. 1992). Hence, we vacated Bell's sentence and
remanded for resentencing in light of our opinion. See id. at
707.
At the resumed sentencing hearing, Bell for the first
time sought to challenge the validity of his prior convictions
and, through that medium, his ACCA status. The district court
ruled that the objection was untimely. It sentenced Bell as an
armed career criminal. This appeal ensued.
II.
Discussion
Bell strives gallantly to persuade us that the district
court was obliged to entertain his belated challenge to some or
all of the six predicate convictions; or, in the alternative,
that the court abused its discretion in refusing to do so. We
find both parts of this asseverational array unconvincing.
A.
The first of appellant's contentions is easily
dispelled. An appellate court's disposition of an appeal must be
read against the backdrop of prior proceedings in the case. See
4
United States v. Cornelius, 968 F.2d 703, 706 (8th Cir. 1992)
(explaining that a remand does not automatically rejuvenate the
entire case); United States v. DeJesus, 752 F.2d 640, 643 (1st
Cir. 1985) (per curiam) (similar); see also Kotler v. American
Tobacco Co., 981 F.2d 7, 13-14 (1st Cir. 1992) (outlining rules
governing appellate court's power to reconsider an issue on
remand from the Supreme Court). It follows, then, that in
determining whether a trial court is duty bound to rethink an
issue foregone in an earlier appeal, the court "must implement
both the letter and spirit of the [previous] mandate, taking into
account the appellate court's opinion and the circumstances it
embraces." United States v. Kikumura, 947 F.2d 72, 76 (3d Cir.
1991) (citation and internal quotation marks omitted). We apply
these tested tenets in the instant case.
Here, our mandate disposing of Bell's original appeal
directed the district court to conduct resentencing "in
accordance with the opinion issued" in that appeal. The context
of that order was the opinion itself an opinion which
discussed, in some detail, see Bell, 966 F.2d at 704-07, the
single issue that appellant chose to proffer. The opinion relied
on Bell's eschewal of any other challenge and virtually
foreclosed the argument he now belatedly advances. We wrote
that, if the district court had not erroneously "sentenced [Bell]
as a career offender under section 4B1.1, the guideline
sentencing range apparently would have been much lower and he
would, in all probability, have been sentenced to 15 years in
5
prison (the mandatory minimum sentence under the statute of
conviction)." Id. at 704. It is readily evident, therefore,
that neither the letter nor the spirit of our mandate is
consistent with the turnaround that Bell proposes today:
starting the sentencing pavane from scratch following remand.
Rather than obligating the district court to examine the validity
of Bell's previous convictions, our mandate, read in the most
plausible manner, constrained the district court from considering
on remand a collateral challenge that defendant had, from all
appearances, deliberately bypassed.
The black letter rule governing this point is that a
legal decision made at one stage of a civil or criminal case,
unchallenged in a subsequent appeal despite the existence of
ample 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. See Williamsburg Wax Museum, Inc.
v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C. Cir. 1987);
see also United States v. Duchi, 944 F.2d 391, 393 (8th Cir.
1991) (standing for the proposition that arguments in the
alternative, like other challenges, must be brought before an
appellate court lest an ensuing ruling become the law of the
case). Abandoning this prudential principle would threaten the
important policy considerations underlying the law of the case
doctrine, such as "stability in the decisionmaking process,
predictability of results, proper working relationships between
6
trial and appellate courts, and judicial economy." United States
v. Rivera-Martinez, 931 F.2d 148, 151 (1st Cir.), cert. denied,
112 S. Ct. 184 (1991).
B.
Even where, as here, an appellate court's mandate does
not contemplate resurrecting an issue on remand, the trial court
may still possess some limited discretion to reopen the issue in
very special situations. See id. at 150-52; Cochran v. M & M
Transp. Co., 110 F.2d 519, 521 (1st Cir. 1940). After all, the
so-called "mandate rule," generally requiring conformity with the
commands of a superior court on remand, is simply a specific
application of the law of the case doctrine and, as such, is a
discretion-guiding rule subject to an occasional exception in the
interests of justice. See, e.g., Johnson v. Uncle Ben's, Inc.,
965 F.2d 1363, 1370 (5th Cir. 1992), petition for cert. filed, 61
U.S.L.W. 3356 (U.S. Sept. 29, 1992) [No. 92-737]; Jones v. Lewis,
957 F.2d 260, 262 (6th Cir.), cert. denied, 113 S. Ct. 125(1992); United States v. Miller, 822 F.2d 828, 832-33 (9th Cir.
1987); Piambino v. Bailey, 757 F.2d 1112, 1119-20 (11th Cir.
1985), cert. denied, 476 U.S. 1169 (1986); Continental Bank &
Trust Co. v. American Bonding Co., 630 F.2d 606, 608 (8th Cir.
1980); Cleveland v. FPC, 561 F.2d 344, 348 (D.C. Cir. 1977);
Banco Nacional de Cuba v. Farr, 383 F.2d 166, 178 (2d Cir. 1967),
cert. denied, 390 U.S. 956 (1968); see also Kotler, 981 F.2d at
13 (on remand, lower court ordinarily retains the "naked power to
reexamine" a closed issue, but should exercise such power
7
"sparingly and only when . . . necessary to avoid extreme
injustice"). In other words, because the law of the case
doctrine is a rule of policy and practice, rather than a
jurisdictional limitation, it may tolerate a "modicum of residual
flexibility" in exceptional circumstances. Rivera-Martinez, 931
F.2d at 151; see also Cochran, 110 F.2d at 521 (warning against
allowing the law of the case doctrine to become an instrument of
injustice). Assuming this to be the law,2 we turn to Bell's
fallback claim that the district court, in its discretion, should
have entertained his challenge to the myriad of predicate
offenses.
Here, reopening an already decided matter cannot be
justified. At a minimum, reopening would require a showing of
exceptional circumstances a threshold which, in turn, demands
that the proponent accomplish one of three things: show that
controlling legal authority has changed dramatically; proffer
significant new evidence, not earlier obtainable in the exercise
of due diligence; or convince the court that a blatant error in
the prior decision will, if uncorrected, result in a serious
injustice. See, e.g., Rivera-Martinez, 931 F.2d at 151
2The commentators have noted considerable uncertainty about
whether a district court is always obligated to conform the scope
of its inquiry on remand with the appellate court's mandate.
See, e.g., 18 C. Wright, et al., Federal Practice and Procedure
4478, at 793 & n.15 (1981 & Supp. 1992). We believe that the
weight of logic and authority pushes against so rigid a position,
but we need not decide the issue squarely; even assuming the
existence of residual discretion, we find no exceptional
circumstances that would warrant the court below in peering
behind our original mandate.
8
(collecting cases); United States v. Rosen, 929 F.2d 839, 842 n.5
(1st Cir.), cert. denied, 112 S. Ct. 77 (1991); DeJesus, 752 F.2d
at 642; see also Marin Piazza v. Aponte Roque, 909 F.2d 35, 38
(1st Cir. 1990). Bell met none of these benchmarks. The
relevant legal authority has not changed.3 The belated
challenge to the predicate offenses is, at best, conclusory and
self-serving; no hard evidence has been adduced from which it
could be concluded that four or more of Bell's predicate
convictions were infirm; and, moreover, no credible explanation
has been offered for Bell's failure to assert the challenge in a
more timely fashion. Finally, no manifest injustice looms. The
district court was not faced with an isolated instance of
inadvertent oversight on the part of a beleaguered defendant.
Bell was represented by able counsel throughout. He and his
lawyer confirmed the district court's findings and conclusion
time and again. He passed up numerous opportunities for mounting
the challenge he now wishes to press. Last, but far from least,
there is no real reason to believe that Bell is exempt from armed
career criminal status. In the circumstances of this case, we
simply cannot fault the district court for declining to reopen
the record.
3It is true that United States v. Paleo, 967 F.2d 7 (1st
Cir. 1992), a case dealing with a district court's discretion to
consider collateral attacks on prior convictions at sentencing,
postdated Bell's first appeal. As appellant concedes, however,
Paleo was no bolt from the blue. We had suggested on several
previous occasions that such challenges were permissible. See,
e.g., United States v. Patrone, 948 F.2d 813, 817 (1st Cir.
1991), cert. denied, 112 S. Ct. 2953 (1992); United States v.
Unger, 915 F.2d 759, 761-62 (1st Cir. 1990), cert. denied, 111 S.
Ct. 1005 (1991); see also Paleo, 967 F.2d at 11 (collecting
caselaw from five other circuits holding to like effect).
9
III. CONCLUSION
We need go no further. The law of the case doctrine
dictates that all litigation must sometime come to an end. See
Arizona v. California, 460 U.S. 605, 619 (1983). Here, appellant
has provided us with no valid reason to depart from this policy
and overturn the district court's refusal to resuscitate an issue
previously agreed upon and decided in the case.
Affirmed.
10