United States v. Bell

• Court: Court of Appeals for the First Circuit
• Decided: March 9, 1993
• Docket: 92-1969
• Status: Published

Opinion

USCA1 Opinion

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.
                                          I.
                                          __

                                  Prior Proceedings
                                  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.

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               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.
                                         II.
                                         ___

                                      Discussion
                                      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.
                                          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.
                                          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
          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.
          Affirmed.
          ________

10