United States v. Connell

• Court: Court of Appeals for the First Circuit
• Decided: October 6, 1993
• Docket: 93-1237
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                              _________________________

No.  93-1237

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                   GERALD CONNELL,

                                Defendant, Appellant.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                          __________________________

                              _________________________

                                        Before

                                Selya, Circuit Judge,
                                       _____________

                      Aldrich and Coffin, Senior Circuit Judges.
                                          _____________________

                              _________________________

Arthur W. Tifford for appellant.
               _________________
               Craig N. Moore, Assistant  United States Attorney, with whom
               ______________
          Edwin  J. Gale, United States  Attorney, and Stephanie S. Browne,
          ______________                               ___________________
          Assistant United States  Attorney, were on brief,  for the United
          States.

                              _________________________

                                   October 6, 1993

                              _________________________

SELYA,  Circuit Judge.   This appeal,  in which  we are
                    SELYA,  Circuit Judge.
                            _____________

          asked  to review  the  district court's  denial  of a  motion  to

          reconsider a sentence  previously imposed,  presents yet  another

          permutation of an existing  application of the "law of  the case"

          doctrine.   For the reasons limned herein, we affirm the district

          court's order.

          I.  BACKGROUND
          I.  BACKGROUND

                    Defendant-appellant Gerald Connell pleaded guilty to an

          information that  charged him with structuring  cash transactions

          to  avoid certain reporting requirements.  See 31 U.S.C.    5313,
                                                     ___

          5324 (1988).   At a sentencing hearing held on June 26, 1991, the

          district  court imposed  a prison  sentence (thirty  months) that

          fell  within  the  guideline  sentencing  range  (GSR),  fixed  a

          supervised release  period, fined  Connell $15,000, and  directed

          him to pay the  costs of his forthcoming confinement  at the rate

          of $1,415.56 per month.

                    Connell  appealed, complaining  that his  offense level

          had been improperly  constituted, thereby inflating the  GSR.  We

          affirmed the sentence, see United States v. Connell, 960 F.2d 191
                                 ___ _____________    _______

          (1st Cir. 1992), but with the proviso that the district court, on

          remand, nevertheless might consider whether an intervening change

          in  the   sentencing  guidelines  warranted  adjustment   of  the

          sentence.  See id. at 199.1
                     ___ ___
                              
          ____________________

               1The  revision  to the  guidelines  involved  the number  of
          levels that should be  added to a defendant's base  offense level
          in a case where, as here, criminally derived funds were knowingly
          laundered.   The extent, timing,  and effect of  the revision are
          explained in our earlier  opinion, see Connell, 960 F.2d  at 197,
                                             ___ _______

                                          2

After  the   case  returned  to  the   district  court,

          defendant sought an  adjustment of sentence based  on the changed

          guideline and also moved for reconsideration of the $15,000 fine.

          The court heard oral argument on May 7, 1992.  It issued an order

          on  that  date  recomputing the  GSR  in  line  with the  revised

          guideline  and  reducing Connell's  prison  term to  twenty-seven

          months,  but leaving  the fine  intact.   The cost-of-confinement

          portion  of  the  sentence remained  unchallenged  and  unchanged

          (except  that the court's estimate of overall cost was lowered to

          reflect  the three-month decrease in the term of immurement).  An

          amended judgment was entered  on or about May 28, 1992.   Connell

          appealed from the order  and judgment, but let the  appeal slide.

          The amended judgment thus became final.

                    Some  seven months  later, Connell  shifted gears.   He

          retained   new   counsel  and   filed   a   further  motion   for

          reconsideration of sentence  in which  he raised,  for the  first

          time,  a complaint  about  the cost-of-confinement  order.2   The

          district court denied the motion.3  This appeal followed.
                              
          ____________________

          and we will not rehearse those details here.

               2Connell filed this motion in the district court on November
          24, 1992, and filed an amended  motion on December 23, 1992.  For
          ease in reference, we  treat these pleadings as a  single motion,
          sometimes styled the "December 1992 motion for reconsideration."

               3Although  the  government  has  not raised  the  point,  we
          question  whether the  district court, so  long after  the appeal
          period expired, had  jurisdiction to  entertain Connell's  motion
          for reconsideration.  See United States v. Miller, 869 F.2d 1418,
                                ___ _____________    ______
          1421  (10th  Cir. 1989)  (ruling that  the district  court lacked
          jurisdiction to  entertain a motion  to reconsider in  a criminal
          case where defendant filed the motion twenty-one months after the
          date on which the appeal period  [10 days] began to run);  United
                                                                     ______

                                          3

II.  DISCUSSION
          II.  DISCUSSION

                    Connell appeals the denial  of his December 1992 motion

          for reconsideration,  sounding two variations on  a single theme:

          that U.S.S.G.   5E1.2(i), which provides  for cost-of-confinement

          orders  in  certain  criminal  cases,4  is  unconstitutional  or,

          alternatively,  is  in  excess  of  the  Sentencing  Commission's

          statutory  powers.     Although  the  challenge   itself  is  not

          frivolous, compare, e.g., United  States v. Spiropoulos, 976 F.2d
                     _______  ____  ______________    ___________

          155, 165-69 (3d  Cir. 1992)  (striking down the  imposition of  a

          cost-of-confinement order on similar grounds)  with, e.g., United
                                                         ____  ____  ______

          States v. Turner, ___ F.2d ___, ___ (7th Cir. 1993) [No. 93-1148,
          ______    ______
                              
          ____________________

          States v.  Cook, 670  F.2d 46,  48 (5th Cir.)  (holding that  the
          ______     ____
          district  court lacked  jurisdiction  to entertain  a motion  for
          rehearing  filed  fifty-seven  days  after  the  entry  of  final
          judgment  in a criminal case), cert. denied, 456 U.S. 982 (1982).
                                         _____ ______
          We  need not probe the point, however,  for it is settled that an
          appellate  court may  forego the  resolution of  a jurisdictional
          question if, as  is true  here, the appeal  is uncomplicated  and
          easily  resolved in  favor  of the  party  to whose  benefit  the
          jurisdictional question  would redound.   See Norton  v. Mathews,
                                                    ___ ______     _______
          427 U.S.  524, 532 (1976);  Secretary of the Navy  v. Avrech, 418
                                      _____________________     ______
          U.S. 676,  677-78  (1974)  (per curiam);  cf.  United  States  v.
                                                    ___  ______________
          Leavitt, 925  F.2d 516, 517 (1st Cir. 1991) (stating that a court
          _______
          may  overlook waiver of an issue by  a criminal defendant so long
          as resolution on the merits will favor the same party  as would a
          disposition premised on waiver).

               4The guideline provides in pertinent part: 

                    Notwithstanding the  provisions of subsection
                    (c)  [the fine  table] of  this section,  but
                    subject to  the provisions of  subsection (f)
                    [discussing the defendant's ability to  pay] 
                    . . . , the court shall impose an  additional
                    fine amount that  is at  least sufficient  to
                    pay  the  costs  to  the  government  of  any
                    imprisonment,   probation,   or    supervised
                    release ordered.

          U.S.S.G.   5E1.2(i).

                                          4

1993  U.S. App.  LEXIS  17472  at  *3-*7] (upholding  a  cost-of-

          confinement order against a  similar challenge) and United States
                                                          ___ _____________

          v.  Hagmann,  950 F.2d  175, 187  (5th  Cir. 1991)  (same), cert.
              _______                                                 _____

          denied,  113 S.  Ct.  108  (1992);  see  also  United  States  v.
          ______                              ___  ____  ______________

          Carrozza,  ___ F.2d ___, ___  (1st Cir. 1993)  [No. 92-1798, slip
          ________

          op.  at  34-37]  (leaving  question  open),  Connell  has  failed

          properly to preserve it in the circumstances of this case.

                    This  case is  analogous in  factual profile  and legal

          stance to United  States v. Bell,  988 F.2d 247  (1st Cir.  1993)
                    ______________    ____

          (Bell II).  Bell  originally challenged his sentence as  a career
           _______

          offender under  the  sentencing guidelines,  contending that  the

          offense of conviction   being a felon in possession of a  firearm

            was not a crime of violence.  See id. at  249; United States v.
                                          ___ ___          _____________

          Bell, 966 F.2d 703, 704 (1st Cir. 1992) (Bell I).  Bell contended
          ____                                     ______

          that he should have been sentenced instead under the Armed Career

          Criminal Act (ACCA), 18  U.S.C.   924(e)(1)(1988).  See  Bell II,
                                                              ___  _______

          988 F.2d at 249;  Bell I, 966 F.2d  at 704.  We  sustained Bell's
                            ______

          appeal, 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."  Bell  I, 966 F.2d at 703.
                                                  _______

          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

5

and,  through that medium, his  ACCA status.   The district court

          ruled  that the objection was  untimely and sentenced  Bell as an

          armed career  criminal.   See Bell  II, 988 F.2d  at 249-50.   We
                                    ___ ________

          affirmed the district court's decision to deny reconsideration of

          the second, delinquent, challenge.  See id. at 252.
                                              ___ ___

                    The  lesson  of the  Bell cases  is  as clear  as their
                                         ____

          namesake:

                    [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.

          Id.  at  250.   This  lesson  embodies  a rather  straightforward
          ___

          application of  the law of the case doctrine     a  doctrine that

          is rooted  in an array of prudential  considerations:  "stability

          in the decisionmaking process, predictability of results,  proper

          working relationships  between 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).   That
                               _____  ______

          is to  say, law-of-the-case rules  afford courts the  security of

          consistency  within a single case while at the same time avoiding

          the  wastefulness, delay, and  overall wheel-spinning that attend

          piecemeal  consideration   of  matters  which   might  have  been

          previously adjudicated.  See 18 Charles A. Wright et al., Federal
                                   ___                              _______

          Practice  &  Procedure    4478  at  603  (Supp.  1993).   In  the
          ______________________

          interests of  both consistency  and judicial  economy, therefore,

          litigants  should not ordinarily be  allowed to take serial bites

                                          6

at the appellate  apple.  See, e.g., United  States v. Rosen, 929
                                    ___  ____  ______________    _____

          F.2d 839, 842 n.5 (1st Cir.), cert. denied, 112 S. Ct. 77 (1991);
                                        _____ ______

          United States v. DeJesus,  752 F.2d 640, 642-43 (1st  Cir. 1985);
          _____________    _______

          White  v. Murtha,  377 F.2d  428, 431 (5th  Cir. 1967);  see also
          _____     ______                                         ___ ____

          Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d
          _____________________________    ______________________

          243, 250 (D.C. Cir. 1987) (stating that a legal  decision made at

          one  stage  of  litigation  becomes  the  law  of  the  case  for

          subsequent   stages  of   litigation  if   the  opportunity   for

          challenging the  decision in an  earlier appeal existed  and went

          unexploited).

                    We think it follows that when a trial court, on remand,

          seeks  to dispose  of  a case  in  accordance with  an  appellate

          court's  mandate,  it "must  implement  both the  letter  and the

          spirit of the 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).   Because  the  mandate  serves as  a

          limitation  on  the power  of the  trial  court, the  issues that

          remain  open on  remand frequently will  be circumscribed  by the

          earlier appeal  and by the  appellate court's disposition  of the

          issues therein.  See Rivera-Martinez, 931 F.2d at  150-51; United
                           ___ _______________                       ______

          States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992).
          ______    _________

                    The  case before  us is  governed by  these rules.   In

          1991,  the  district  court   invoked  U.S.S.G.     5E1.2(i)  and

          sentenced  Connell,  inter  alia,   to  pay  the  costs   of  his
                               _____  ____

          confinement.   Connell  appealed his  sentence, but  eschewed any

7

challenge to the cost-of-confinement order.  Having foregone that

          opportunity,  Connell  could  not   thereafter  insist  that  the

          district court exceed the limited scope of our remand in order to

          revisit a settled issue.

                    In this case, moreover, Connell defaulted not once, but

          twice.   As we have indicated,  he did not challenge the cost-of-

          confinement order on his  direct appeal.  He then  compounded his

          difficulties  by  omitting any  reference  to  the  order in  the

          proceedings   that  immediately   followed  our   remand.     His

          afterthought request for  reconsideration, occurring, as it  did,

          some  seven months  after the  district court  had fulfilled  its

          mission on remand   and well beyond the expiration of the  appeal

          period in respect to the revised sentence   came too  late.  See,
                                                                       ___

          e.g.,  United States v. Ramirez,  954 F.2d 1035,  1038 (5th Cir.)
          ____   _____________    _______

          (holding that,  in order  to be  timely,  a criminal  defendant's

          motion for reconsideration must be filed  within the ten-day time

          period  allotted  for appeal),    cert.  denied,  112 S.Ct.  3010
                                            ____   ______

          (1992); see also  United States  v. Miller, 869  F.2d 1418,  1421
                  ___ ____  _____________     ______

          (10th Cir.  1989); United States  v. Cook,  670 F.2d 46,  48 (5th
                             _____________     ____

          Cir.), cert. denied, 456 U.S. 982 (1982).  After all, if Connell,
                 ____  ______

          having  initially conceded  the cost-of-confinement  issue, could

          not  have raised it when the district court, on remand, undertook

          its  reconsideration  of  the  incarcera-  tive  portion  of  his

          sentence, see  Bell II, 988 F.2d  at 250, then he  clearly had no
                    ___  _______

          right  to raise the issue  after the revised  sentence had become

          final.   Cf., e.g., Witty v. Dukakis, ___ F.2d ___, ___ (1st Cir.
                   ___  ____  _____    _______

8

1993) [No. 93-1238, slip op. at 7] ("A party confronted  by a set

          period for taking an  action cannot allow the  time to lapse  and

          then  resurrect  his  rights  merely  by  asking  the   court  to

          reconsider or to confirm what the court has already done.").

                    To  be sure, neither the  law of the  case doctrine nor

          its kissing  cousin, the so-called "mandate rule," is designed to

          function as a straitjacket.  Rather, these are discretion-guiding

          principles,  generally thought to be subject to exceptions in the

          interests of justice.5  See Bell II, 988 F.2d at  251 (collecting
                                  ___ _______

          cases).   But, the exceptions are narrowly  configured and seldom

          invoked, and this  case has none of  the requisite earmarks:   no

          new  evidence has  been unearthed,  no controlling  precedent has

          emerged suddenly,  the motion  for  reconsideration contained  no

          suggestion that  Connell  lacks the  means  to pay  the  cost-of-

          commitment impost,  the delay in  raising the point  is unexcused

          and seems  excessive, and,  most importantly, we  are unpersuaded

          that the  "decision  was  clearly  erroneous  and  would  work  a

          manifest injustice."  Rivera- Martinez,  931 F.2d at 151 (quoting
                                ________________

          White,  377 F.2d at 432).  Given these circumstances, and mindful
          _____

          of the  substantial latitude  retained by  the district  court in

          deciding  whether to rethink matters previously  set to rest, see
                                                                        ___

          United States v. Roberts, 978 F.2d 17,  20-21 (1st Cir. 1992), we
          _____________    _______

          cannot  say that the court below abused its discretion in denying

____________________

               5Although it is not altogether clear that a trial court on a
          limited  remand may exceed, for whatever reason, the scope of the
          appellate court's mandate, see  Bell II, 988 F.2d at  251 n.2, we
                                     ___  _______
          assume arguendo, favorably to Connell, that such power exists.
                 ________

                                          9

Connell's belated  motion for  reconsideration of this  aspect of

          his sentence.

III.  CONCLUSION
          III.  CONCLUSION

                    We need  go  no further.6    Courts can  only  function

          under the aegis of rules   and parties who ignore the rules do so

          at  their peril.  See, e.g., Puleio  v. Vose, 830 F.2d 1197, 1203
                            ___  ____  ______     ____

          (1st Cir. 1987) ("The law ministers to  the vigilant not to those

          who sleep upon perceptible rights."), cert. denied, 485  U.S. 990
                                                _____ ______

          (1988).  So it  is here:  appellant,  having failed to  challenge

          the cost-of-confinement order in a timeous manner,  must bear the

          predictable  consequences of his neglect.   On the  facts of this

          case, we discern no  injustice in holding appellant to  the usual

          raise-or-waive standard.

Affirmed.
          Affirmed.
          _________

____________________

               6Citing  a  November 1992  amendment  to  U.S.S.G.    3E1.1,
          Connell's December 1992 motion for reconsideration also  asserted
          an  entitlement to a  more extravagant  credit for  acceptance of
          responsibility.  The  district court hewed  to the original  two-
          level decrease  for acceptance  of responsibility because  it did
          not   believe  that   the   1992  amendment   could  be   applied
          retroactively.  This court  later reached the same  conclusion in
          an unrelated  case.  See United States  v. Desouza, 995 F.2d 323,
                               ___ _____________     _______
          324  (1st  Cir.  1993)  (per  curiam).    In  light  of  Desouza,
                                                                   _______
          appellant's counsel abandoned this issue at oral argument.

                                          10