United States v. Cabaccang

226 F. App'x 750

Opinion

MEMORANDUM

Footnotes

•

*

James Toves Cabaccang and Richard Toves Cabaccang appeal the sentences imposed by the district court following our remand.¹ In United States v. Cabaccang, 332 F.3d 622 (9th Cir.2003) (en banc) (“Ca baccang I ”), we held that the transport of drugs on a nonstop flight through international airspace from one location in the United States to another does not constitute importation within the meaning of 21 U.S.C. § 952(a).² Id. at 623. We therefore reversed the convictions on all of the importation-related counts of Roy, James, and Richard (collectively “Appellants”) and remanded to the district court to reconsider Roy’s conviction for a continuing criminal enterprise. Id. at 637. We affirmed the judgment of the district court on the counts that were not importation-related, adopting the decisions of the three-judge panel with respect to those counts. Id.

Appellants then filed a motion for clarification of the remand, asking us to remand James’ and Richard’s convictions and sentences on Count II of the indictment, conspiracy to distribute methamphetamine, and to remand Roy’s conviction and sentence on Count VI, possession with intent to distribute methamphetamine. We denied the motion as to Count II but remanded Count VI. United States v. Cabaccang, 341 F.3d 905 (9th Cir.2003) (en banc) (“Cabaccang II ”).

On remand, the district court concluded that our opinion and clarification order affirmed the non-importation-related convictions of James and Richard and that it accordingly lacked jurisdiction to resentence them. James and Richard contend that this was error. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.

Cabaccang I clearly stated that the convictions and sentences that were not importation-related were affirmed. Cabaccang I, 332 F.3d at 637. The remand order concerned only Roy, not James or Richard. See id. Cabaccang II denied Appellants’ motion to remand James’ and Richard’s convictions on Count II. Cabaccang II, 341 F.3d at 905.

James’ and Richard’s reliance on United States v. Ruiz-Alvarez, 211 F.3d 1181 (9th Cir.2000) (as amended), is unavailing. Unlike Ruiz-Alvarez, in which “resentencing was not inconsistent with the panel’s decision,” id. at 1184, resentencing here would have been directly contrary to the express language of our decision. See Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1172 (9th Cir.2006) (“[W]e have repeatedly held, in both civil and criminal cases, that a district court is limited by this court’s remand in situations where the scope of the remand is clear.”); United States v. Pimentel, 34 F.3d 799, 800 (9th Cir.1994) (per curiam) (Where “we expressly limited the scope of our remand to consideration of a single sentencing issue ..., the district court was without authority to reexamine any other sentencing issues on remand.”).

“The rule of mandate requires a lower court to act on the mandate of an appellate court, without variance or examination, only execution.” United States v. Garcia-Beltran, 443 F.3d 1126, 1130 (9th Cir.), cert. denied,-U.S.-, 127 S.Ct. 319, 166 L.Ed.2d 239 (2006). Both Cabaccang I and Cabaccang II clearly limited the scope of the remand. The district court accordingly did not err in concluding that it lacked jurisdiction to resentence James and Richard. The judgments of the district court on remand are

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1

. The Cabaccangs are brothers. For ease of reference, we will refer to them by their first names. James’ and Richard’s appeals were consolidated and argued together, together with the appeal of their brother, Roy Toves Cabaccang. We address Roy’s appeal, No. 05-10352, in a concurrently-filed separate opinion.

2

. Because the parties are familiar with the factual and procedural background, we do not recite it here except as necessary to aid in understanding this disposition.