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IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT MAR 18, 2010 No. 09-10068 JOHN LEY ________________________ CLERK
D. C. Docket No. 06-00004-CR-FTM-99-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY LOUISUIS, a.k.a. J.C., EXUIS LOUIS, a.k.a. X-Man, ELEX PIERRE, a.k.a. Showtime,
Defendants-Appellants.
________________________
Appeals from the United States District Court for the Middle District of Florida _________________________
(March 18, 2010) Before BARKETT, PRYOR and HILL, Circuit Judges.
PER CURIAM:
Jimmy Louisuis, Exuis Louis, and Elex Pierre for the second time appeal
their sentences for several drug offenses and a firearm offense. We reversed their
original sentences and remanded to the district court for resentencing because of
the intervening decision of the Supreme Court in Kimbrough v. United States, 552
U.S. 85, 128 S. Ct. 558 (2007). United States v. Louisuis, No. 06-16682 (11th Cir.
Sept. 26, 2008). On remand, the district court sentenced Louisuis, Louis, and
Pierre each to a term of 120 months of imprisonment for the drug offenses and to a
consecutive term of 60 months of imprisonment for the firearm offense. Louisuis
and Louis contend that the district court erred by refusing to consider their
arguments for relief under the safety valve and for a reduction for acceptance of
responsibility. Louisuis, Louis, and Pierre argue that the district court erred by
imposing a sentence of 60 months for the firearm offense to run consecutively to
the sentence for the drug offenses. We affirm.
I. BACKGROUND
A jury convicted Louisuis, Louis, and Pierre of conspiring to possess 50 or
more grams of cocaine base with intent to distribute, 21 U.S.C. § 846; possessing
50 or more grams of cocaine base with intent to distribute, id. § 841(a)(1),
2 (b)(1)(A)(iii); maintaining a place for the purpose of manufacturing and
distributing cocaine base, id. § 856(a)(1), (b); and possessing firearms in
furtherance of a drug trafficking crime, 18 U.S.C. § 924(a)(1)(A)(i). At the
original sentencing proceedings, the district court sentenced Louisuis and Louis
each to a term of 121 months of imprisonment for the drug offenses and a
consecutive term of 60 months of imprisonment for the firearm offense. The
district court sentenced Pierre to a term of 151 months of imprisonment for the
drug offenses and a consecutive term of 60 months of imprisonment for the firearm
offense.
Louisuis, Louis, and Pierre appealed their convictions and sentences. They
argued that their sentences were unreasonable because the district court refused to
consider the sentencing disparity between crack cocaine and powder cocaine
offenses. During the pendency of that appeal, the Supreme Court held that a
district court can consider the disparity. Kimbrough, 552 U.S. at 109, 128 S. Ct. at
574. As a result, we affirmed their convictions but reversed their sentences and
remanded to the district court for resentencing in the light of Kimbrough.
Louisuis, No. 06-16682 (11th Cir. Sept. 26, 2008).
On remand, the district court sentenced Louisuis, Louis, and Pierre each to a
term of 120 months of imprisonment for the drug offenses and a consecutive term
3 of 60 months of imprisonment for the firearm offense. The government conceded
and the district court ruled that Louisuis, Louis, and Pierre were eligible for relief
under Amendment 706 to the Sentencing Guidelines, which retroactively lowered
the offense levels for certain cocaine offenses. Louisuis and Louis also requested
relief under the safety valve, 18 U.S.C. § 3553(f), and a reduction for acceptance of
responsibility, United States Sentencing Guidelines § 3E1.1, but the district court
rejected those requests based on the limited scope of the remand.
II. STANDARD OF REVIEW
We review de novo whether the district court complied with our mandate.
United States v. Amedeo, 487 F.3d 823, 829 (11th Cir. 2007).
III. DISCUSSION
We divide our discussion of this appeal into two parts. First, we discuss
whether the district court erred by refusing to consider Louisuis’s and Louis’s
requests for relief under the safety valve and for a reduction for acceptance of
responsibility. Second, we discuss whether the district court erred by sentencing
Louisuis, Louis, and Pierre each to a consecutive term of 60 months of
imprisonment for the firearm offense.
A. The District Court Did Not Err by Refusing to Consider the Requests for Relief Under the Safety Valve and for a Reduction for Acceptance of Responsibility.
A remand “for consideration in light of a particular decision is much more
4 limited in nature than a general vacation by an appellate court, and its effect is not
to nullify all prior proceedings.” United States v. Tamayo, 80 F.3d 1514, 1520
(11th Cir. 1996) (internal quotation marks omitted). When this Court issues a
limited mandate, the district court is “restricted in the range of issues it may
consider on remand.” United States v. Davis, 329 F.3d 1250, 1252 (11th Cir.
2003). A district court is “obligate[d] . . . to follow our mandates and not to assert
jurisdiction over matters outside the scope of a limited mandate.” Tamayo, 80 F.3d
at 1520 (citation omitted).
The district court did not err by refusing to consider Louisuis’s and Louis’s
requests for relief under the safety valve and for a reduction for acceptance of
responsibility. We issued a limited mandate to the district court to resentence
Louisuis, Louis, and Pierre in the light of Kimbrough. This limited mandate
permitted the district court “to reconsider the § 3553(a) factors in light of the
Supreme Court’s holding in Kimbrough” and to “combine this resentencing
proceeding on remand with any additional proceeding the district court may
determine is appropriate in light of the retroactive application of Amendment 706
to the crack-cocaine guidelines.” United States v. Stratton, 519 F.3d 1305, 1307
(11th Cir. 2008). The limited mandate did not permit the district court to revisit
whether Louisuis and Louis were entitled to relief under the safety valve or a
5 reduction for acceptance of responsibility. See United States v. Vautier, 144 F.3d
756, 760 (11th Cir. 1998).
B. The District Court Did Not Err by Imposing a Consecutive Term of 60 Months of Imprisonment for the Firearm Offense.
Louisuis, Louis, and Pierre contend that the prefatory “except” clause of
section 924(c)(1)(A)(i) prohibits a district court from imposing a consecutive
sentence when the mandatory minimum sentence for the underlying drug offense
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IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT MAR 18, 2010 No. 09-10068 JOHN LEY ________________________ CLERK
D. C. Docket No. 06-00004-CR-FTM-99-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY LOUISUIS, a.k.a. J.C., EXUIS LOUIS, a.k.a. X-Man, ELEX PIERRE, a.k.a. Showtime,
Defendants-Appellants.
________________________
Appeals from the United States District Court for the Middle District of Florida _________________________
(March 18, 2010) Before BARKETT, PRYOR and HILL, Circuit Judges.
PER CURIAM:
Jimmy Louisuis, Exuis Louis, and Elex Pierre for the second time appeal
their sentences for several drug offenses and a firearm offense. We reversed their
original sentences and remanded to the district court for resentencing because of
the intervening decision of the Supreme Court in Kimbrough v. United States, 552
U.S. 85, 128 S. Ct. 558 (2007). United States v. Louisuis, No. 06-16682 (11th Cir.
Sept. 26, 2008). On remand, the district court sentenced Louisuis, Louis, and
Pierre each to a term of 120 months of imprisonment for the drug offenses and to a
consecutive term of 60 months of imprisonment for the firearm offense. Louisuis
and Louis contend that the district court erred by refusing to consider their
arguments for relief under the safety valve and for a reduction for acceptance of
responsibility. Louisuis, Louis, and Pierre argue that the district court erred by
imposing a sentence of 60 months for the firearm offense to run consecutively to
the sentence for the drug offenses. We affirm.
I. BACKGROUND
A jury convicted Louisuis, Louis, and Pierre of conspiring to possess 50 or
more grams of cocaine base with intent to distribute, 21 U.S.C. § 846; possessing
50 or more grams of cocaine base with intent to distribute, id. § 841(a)(1),
2 (b)(1)(A)(iii); maintaining a place for the purpose of manufacturing and
distributing cocaine base, id. § 856(a)(1), (b); and possessing firearms in
furtherance of a drug trafficking crime, 18 U.S.C. § 924(a)(1)(A)(i). At the
original sentencing proceedings, the district court sentenced Louisuis and Louis
each to a term of 121 months of imprisonment for the drug offenses and a
consecutive term of 60 months of imprisonment for the firearm offense. The
district court sentenced Pierre to a term of 151 months of imprisonment for the
drug offenses and a consecutive term of 60 months of imprisonment for the firearm
offense.
Louisuis, Louis, and Pierre appealed their convictions and sentences. They
argued that their sentences were unreasonable because the district court refused to
consider the sentencing disparity between crack cocaine and powder cocaine
offenses. During the pendency of that appeal, the Supreme Court held that a
district court can consider the disparity. Kimbrough, 552 U.S. at 109, 128 S. Ct. at
574. As a result, we affirmed their convictions but reversed their sentences and
remanded to the district court for resentencing in the light of Kimbrough.
Louisuis, No. 06-16682 (11th Cir. Sept. 26, 2008).
On remand, the district court sentenced Louisuis, Louis, and Pierre each to a
term of 120 months of imprisonment for the drug offenses and a consecutive term
3 of 60 months of imprisonment for the firearm offense. The government conceded
and the district court ruled that Louisuis, Louis, and Pierre were eligible for relief
under Amendment 706 to the Sentencing Guidelines, which retroactively lowered
the offense levels for certain cocaine offenses. Louisuis and Louis also requested
relief under the safety valve, 18 U.S.C. § 3553(f), and a reduction for acceptance of
responsibility, United States Sentencing Guidelines § 3E1.1, but the district court
rejected those requests based on the limited scope of the remand.
II. STANDARD OF REVIEW
We review de novo whether the district court complied with our mandate.
United States v. Amedeo, 487 F.3d 823, 829 (11th Cir. 2007).
III. DISCUSSION
We divide our discussion of this appeal into two parts. First, we discuss
whether the district court erred by refusing to consider Louisuis’s and Louis’s
requests for relief under the safety valve and for a reduction for acceptance of
responsibility. Second, we discuss whether the district court erred by sentencing
Louisuis, Louis, and Pierre each to a consecutive term of 60 months of
imprisonment for the firearm offense.
A. The District Court Did Not Err by Refusing to Consider the Requests for Relief Under the Safety Valve and for a Reduction for Acceptance of Responsibility.
A remand “for consideration in light of a particular decision is much more
4 limited in nature than a general vacation by an appellate court, and its effect is not
to nullify all prior proceedings.” United States v. Tamayo, 80 F.3d 1514, 1520
(11th Cir. 1996) (internal quotation marks omitted). When this Court issues a
limited mandate, the district court is “restricted in the range of issues it may
consider on remand.” United States v. Davis, 329 F.3d 1250, 1252 (11th Cir.
2003). A district court is “obligate[d] . . . to follow our mandates and not to assert
jurisdiction over matters outside the scope of a limited mandate.” Tamayo, 80 F.3d
at 1520 (citation omitted).
The district court did not err by refusing to consider Louisuis’s and Louis’s
requests for relief under the safety valve and for a reduction for acceptance of
responsibility. We issued a limited mandate to the district court to resentence
Louisuis, Louis, and Pierre in the light of Kimbrough. This limited mandate
permitted the district court “to reconsider the § 3553(a) factors in light of the
Supreme Court’s holding in Kimbrough” and to “combine this resentencing
proceeding on remand with any additional proceeding the district court may
determine is appropriate in light of the retroactive application of Amendment 706
to the crack-cocaine guidelines.” United States v. Stratton, 519 F.3d 1305, 1307
(11th Cir. 2008). The limited mandate did not permit the district court to revisit
whether Louisuis and Louis were entitled to relief under the safety valve or a
5 reduction for acceptance of responsibility. See United States v. Vautier, 144 F.3d
756, 760 (11th Cir. 1998).
B. The District Court Did Not Err by Imposing a Consecutive Term of 60 Months of Imprisonment for the Firearm Offense.
Louisuis, Louis, and Pierre contend that the prefatory “except” clause of
section 924(c)(1)(A)(i) prohibits a district court from imposing a consecutive
sentence when the mandatory minimum sentence for the underlying drug offense
exceeds the mandatory minimum sentence for the firearm offense. We recently
rejected this argument in United States v. Segarra and held that section
924(c)(1)(A)(i) requires consecutive sentences even when the mandatory minimum
sentence for the underlying drug offense exceeds the sentence for the firearm
offense. 582 F.3d 1269, 1273 (11th Cir. 2009). As a result, the district court did
not err, plainly or otherwise, by sentencing Louisuis, Louis, and Pierre each to a
consecutive term of 60 months of imprisonment for their convictions under section
924(c)(1)(A)(i) .
IV. CONCLUSION
We AFFIRM the sentences of Louisuis, Louis, and Pierre.
6 BARKETT, Circuit Judge, specially concurring:
I agree with the majority that this Court’s precedent forecloses Louisius,
Louis, and Pierre’s argument that the district court erred by imposing consecutive
sentences for their convictions under 18 U.S.C. § 924(c)(1)(A)(i). See United
States v. Segarra, 582 F.3d 1269, 1273 (11th Cir. 2009).
However, I note that the United States Supreme Court has granted certiorari
in two consolidated cases to resolve the circuit split over the issue in this case.
Abbott v. United States, 574 F.3d 203 (3d Cir. 2009), cert. granted, 78 U.S.L.W.
3254 (U.S. Jan. 25, 2010) (No. 09-479); Gould v. United States, 329 Fed. App’x
569 (5th Cir. 2009) (unpublished), cert. granted, 78 U.S.L.W. 3430 (U.S. Jan. 25,
2010) (No. 09-7073).