United States v. Dutch

978 F.3d 1341

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 5, 2020
• Docket: 19-2196
• Status: Published

Opinion

FILED United States Court of Appeals Tenth Circuit

PUBLISH November 5, 2020 Christopher M. Wolpert UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant, v. No. 19-2196 MARC DUTCH,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. NO. 1:16-CR-01424-MV-1)

C. Paige Messec, Assistant United States Attorney (John C. Anderson, United States Attorney, with her on the briefs), Office of the United States Attorney, Albuquerque, New Mexico, for Appellant.

Brian A. Pori, Albuquerque, New Mexico, for Appellee.

Before TYMKOVICH, Chief Judge, BRISCOE, and MURPHY, Circuit Judges.

TYMKOVICH, Chief Judge.

Marc Dutch pleaded guilty in 2016 to being a felon in possession of a

firearm and ammunition in violation of 18 U.S.C. §§ 922(g) and 924(e). In its

presentence report, probation recommended that Dutch may be subject to a sentencing enhancement under the Armed Career Criminals Act (ACCA). At the

sentencing hearing, the district court concluded the ACCA should not govern

Dutch’s sentencing because the government had not met its burden of proving

Dutch’s predicate crimes occurred on separate occasions.

The federal government appealed the sentencing decision to this court and,

through an unpublished opinion, a panel of this court concluded the ACCA

applied because the government had proved by a preponderance of evidence that

Dutch’s prior crimes “occurred on different dates and at different locations.” See

United States v. Dutch (Dutch I), 753 F. App’x 632, 635 (10th Cir. 2018), cert.

denied, 139 S. Ct. 1590 (2019). We accordingly reversed and remanded for

resentencing. Dutch I, 753 F. App’x at 635. Prior to remand, Dutch pursued en

banc review in this court, raising much the same arguments, and then petitioned

for relief before the United States Supreme Court. Both requests were denied.

At resentencing, despite this history, the district court at the defendant’s

urging revisited the ACCA determination and concluded, once again, that it did

not apply. The district court concluded the charging document and plea

agreement the government offered to show Dutch committed his crimes on

different occasions were inadequate to determine whether Dutch had actually

committed the crimes on different occasions or simply committed one act of

-2- aiding and abetting. The court sentenced Dutch to a 60-month term of

imprisonment and three years of supervised release.

This appeal addresses the federal government’s challenge to the district

court’s resentencing. The government insists the district court violated our

directions for resentencing on remand by deciding, once again, that the ACCA

does not apply to Dutch despite our differing conclusion in Dutch I. We agree.

The district court disregarded this court’s clear mandate from Dutch I that the

ACCA governs Dutch’s sentencing.

We reverse and remand for resentencing.

I. Background

A. Factual Background

Because a panel of this court already laid out the background to this case in

Dutch I, we briefly summarize the relevant facts. On January 27, 2016 officers

from the Albuquerque Police Department responded to a report that a vehicle had

crashed into a wall. Soon after their arrival, the officers made contact with the

owner of the vehicle, Marc Dutch. The officers took Dutch into custody and

discovered that he was carrying a loaded .22LR caliber revolver and

methamphetamine. Dutch was charged with being a felon in possession of a

firearm and ammunition in violation of 18 U.S.C. §§ 922(g) and 924(e). He

pleaded guilty.

-3- Ten years earlier, Dutch had been charged with seven counts of bank

robbery. He pleaded guilty to three counts of the substantive offense of bank

robbery, as well as aiding and abetting in those three robberies, in violation of 18

U.S.C. §§ 2 and 2113(a). These three robberies all took place on different days at

different locations in Albuquerque during November of 2005.

B. Procedural Background

In its presentence report, probation noted Dutch’s three prior convictions

for bank robbery qualified as violent felonies under the ACCA. Under the

ACCA, a defendant is subject to a minimum term of imprisonment of 15 years if

he has “three previous convictions . . . for a violent felony or a serious drug

offense, or both, committed on occasions different from one another.” 18 U.S.C.

§ 924(e)(1). Given Dutch’s prior felonies, probation recommended the district

court apply the ACCA’s sentencing enhancement.

Dutch objected to any enhancement under the ACCA. Relevant here, Dutch

argued that the federal government had failed to meet its burden of showing by a

preponderance of the evidence that his convictions were “committed on occasions

different from one another” as is required under United States v. Delossantos, 680

F.3d 1217 (10th Cir. 2012).

The government argued the ACCA should apply to Dutch. According to

Shepard v. United States, 544 U.S. 13, 16 (2005), a district court can consider

-4- only certain evidence when determining whether a sentencing enhancement

applies under the ACCA. In compliance with Shepherd, the government offered

the indictment, plea agreement, and criminal judgment from the 2006 bank

robberies to prove that the bank robberies occurred on different occasions. The

government insisted this information was enough for the district court to find that

Dutch had been convicted of qualifying violent felonies committed on different

occasions.

The district court agreed with Dutch. Specifically, it concluded the ACCA

did not apply because Dutch was addicted to drugs at the time of his crime spree

so he had no meaningful opportunity to stop between each of the robberies. The

court imposed a sentence well below the 15-year minimum that would have

applied under the ACCA, a 60-month term of imprisonment and three years of

supervised release.

The government appealed the sentence to this court, arguing the district

court had erred in deciding not to apply the ACCA to Dutch. On appeal in Dutch

I, the panel considered the theory the district court relied on. It also considered

another theory Dutch briefed and argued in Dutch I: that the documents provided

by the government were ambiguous about which crimes Dutch had actually

committed. According to the plea agreement, Dutch pleaded guilty to the

substantive offenses of bank robbery and aiding and abetting two accomplices in

-5- committing them. No factual description was given of what role he actually

played in the crimes. Thus, according to Dutch, the documents left open the

possibility that he could have aided and abetted each of the robberies through a

single criminal action taken on one occasion. Given this possibility, Dutch

argued, the government had not met its burden of showing that the crimes were

committed on different occasions.

The panel in Dutch I rejected both arguments and held that the ACCA

should apply. 753 F. App’x at 634–35. Throughout the opinion, the panel

decided: “[w]e agree with the government that the ACCA governs because

Dutch’s crimes were committed on occasions different from one another,” id. at

633 (internal quotations omitted); “Dutch’s prior indictment demonstrates that his

three bank robberies occurred at different times and places, and involved different

banks. This information satisfies the government’s burden,” id. at 634; and “[w]e

also reject Dutch’s argument that he did not admit to aiding and abetting the bank

robberies on different occasions,” id. The panel concluded, “We REVERSE the

district court’s conclusion that the ACCA does not apply and REMAND with

instructions to VACATE Dutch’s sentence and resentence him consistent with this

order and judgment.” Id. at 635.

Dutch filed a petition for rehearing en banc and a petition for writ of

certiorari to the United States Supreme Court, both of which were denied. In

-6- those petitions he again argued that the ACCA should not apply because the

charging document and plea agreement were insufficient to prove he had

committed the crimes on different occasions.

On remand, the district court held another sentencing hearing. At this

hearing, Dutch’s counsel revived the argument that the ACCA should not apply

because of ambiguity in the charging documents and plea agreement about

whether Dutch pleaded guilty to aiding and abetting the bank robberies on one

occasion or three separate occasions.

Faced with this argument, the district court asked “[O]n what basis do I

resentence disregarding [Dutch I’s] mandate?” Aplt. App. 323. Dutch responded

“is the Tenth Circuit infallible?”and insisted that this court had not fully

understood the argument during the first appeal. Id. The district court eventually

agreed, concluding it was not “a fully-developed argument and not fully

addressed.” Id. at 326.

Having concluded it was not bound by Dutch I’s mandate, the district court

once again decided the ACCA did not apply. This time, it concluded the

government had not met its burden of showing the crimes were committed on

different occasions due to the paucity of information in the charging document

and plea agreement. The district court reimposed its original sentence of a 60-

-7- month term of imprisonment and three years of supervised release. The

government objected based upon this court’s mandate and subsequently appealed.

II. Analysis

The government makes one argument on appeal. It argues the panel’s

mandate from Dutch I limited the district court’s discretion on remand. The

government insists we must reverse the district court’s resentencing decision

because the district court went beyond the bounds of that mandate when

resentencing. We agree.

A. Law of the Case and the Mandate Rule

A decision by this court establishes the law of the case and prevents an

issue decided by it from being relitigated on remand. United States v. West, 646

F.3d 745, 747–48 (10th Cir. 2011). When we remand a case, we generally

provide instructions to the district court¯the so-called “mandate.” We have said

“[t]he mandate consists of our instructions to the district court at the conclusion

of the opinion, and the entire opinion that preceded those instructions.” Proctor &

Gamble Co. v. Haugen, 317 F.3d 1121, 1126 (10th Cir. 2003).

The mandate rule follows from the law of the case doctrine. See 18B

Wright & Miller, Federal Practice and Procedure § 4478.3 (2d ed. 2002) (Oct.

2020 update) (“Law-of-the-case terminology is often employed to express the

principle that an inferior tribunal is bound to honor the mandate of a superior

-8- court within a single judicial system.”). It requires the district court to strictly

comply with any mandate rendered by this court on remand. West, 646 F.3d at

748. “There is nothing surprising about [this] basic principle, which inheres in

the nature of judicial hierarchy.” Wright & Miller at § 4478.3.

We have a presumption in favor of general remands when remanding for

resentencing. West, 646 F.3d at 749. So, in cases remanded for resentencing, the

district court is at liberty to expand its considerations beyond the original error

this court addressed absent an express limitation by this court. Id. This means

that “[a] court of appeals that wishes to control the resentencing process must

accept responsibility for expressing its intentions.” Wright & Miller at § 4478.3.

We look to the language of the previous mandate to determine whether the

prior panel limited the district court’s discretion on remand. West, 646 F.3d at

749. We review the interpretation of a mandate de novo. United States v.

Walker, 918 F.3d 1134, 1144 (10th Cir. 2019). We then ask whether the court

abused any measure of discretion left to it. Id.

Even if the mandate specifically precludes reconsideration of an issue, this

court has carved out several exceptions to the mandate rule when the district court

is faced with exceptional circumstances. See United States v. Moore, 83 F.3d

1231, 1234–35 (10th Cir. 1996). These exceptional circumstances include a

dramatic change in controlling legal authority, significant new evidence that was

-9- not obtainable earlier through due diligence, or a blatant error from the prior

sentencing decision that would result in serious injustice if left uncorrected. Id.

As we show below, none of the exceptional circumstances was met here.

B. Dutch I’s Mandate

The panel’s mandate in Dutch I was specific and limited the district court’s

discretion on remand: the ACCA governs Dutch’s sentencing. The panel held that

the government had presented sufficient evidence to show the crimes were

committed on different occasions. 753 F. App’x at 634. And it made clear that

the district court was bound by this determination on remand. Id. at 635 (“We

REVERSE the district court’s conclusion that the ACCA does not apply and

REMAND with instructions to VACATE Dutch’s sentence and resentence him

consistent with this order and judgment.”) (emphasis added). This was not a

general remand on the applicability of the ACCA. The district court had no

discretion to disregard the panel’s specific and limited mandate. It erred by

disregarding the mandate from Dutch I.

Dutch and the district court are correct on several points: we are not

infallible and we do not always address an issue as fully as the district court

might hope in our mandates. But the Dutch I court did not suffer from either of

these infirmities. In no uncertain terms, the panel rejected Dutch’s argument that

the district court relied on at resentencing. See id. at 634 (“We also reject

-10- Dutch’s argument that he did not admit to aiding and abetting the bank robberies

on different occasions.”). 1 Even if the prior panel had erred, the extent of a

district court’s discretion on remand is not determined by our fallibility or the

district court’s satisfaction with our explanation. The court’s discretion on

remand is determined by the limitations expressly imposed on it by our mandate.

This court need not plumb the depths and details of an issue to preclude further

argument about it on remand.

On those occasions, hopefully few and far between, when this court is

wrong or unclear, the district courts are not in the position to engage in error

correction on remand. We have processes in place to ensure parties can have

errors corrected: petitions for panel rehearings, rehearings en banc, and writs of

certiorari to the United States Supreme Court. Dutch pursued these processes

following Dutch I to no avail. If the mandate rule means anything, it must mean

that a district court cannot disregard a specific mandate on remand because it

disagrees with it or thinks it insufficiently explained.

1 Though we need not reach the underlying issue here, we agree with the Dutch I panel that the government satisfied its burden of proving Dutch has three prior violent felony convictions that were committed on occasions different from one another. Regardless of whether Dutch aided and abetted the three bank robberies through a single action of aiding and abetting, the charging document and plea agreement prove he was charged with and pleaded guilty to three counts of substantive bank robbery. The documents also make clear these robberies happened on different occasions in different locations. That is enough for the government to satisfy its burden.

-11- And finally, of course, the mandate rule can be tempered by exceptional

circumstances. Dutch argues at least one of the exceptions to the mandate rule

applies. But none do. There is no new law at issue and no new evidence has been

uncovered. The third exception applies only to blatant errors by the prior

sentencing court, which it may consider only if this court failed to address them.

That was not the case here.

III. Conclusion

We REVERSE the district court’s conclusion that the ACCA does not apply

and REMAND with instructions to VACATE Dutch’s sentence and resentence

him consistent with this opinion.

-12-