Appellate Case: 22-3173 Document: 010111018526 Date Filed: 03/19/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 19, 2024
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-3173
JAMARYUS MOORE,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the District of Kansas (D.C. No. 6:18-CR-10073-JWB-2) _________________________________
Jacob R. Rasch-Chabot, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, and Grant R. Smith, Assistant Federal Public Defender, on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Defendant – Appellant.
Bryan C. Clark, Assistant U.S. Attorney, Kansas City, Kansas (Kate E. Brubacher, U.S. Attorney, James A. Brown, Assistant U.S. Attorney, Chief Appellate Division, and Molly M. Gordon, Assistant U.S. Attorney, Wichita, Kansas, on the brief), District of Kansas, for Plaintiff – Appellee. _________________________________
Before TYMKOVICH, MURPHY, and CARSON, Circuit Judges. _________________________________
MURPHY, Circuit Judge. _________________________________ Appellate Case: 22-3173 Document: 010111018526 Date Filed: 03/19/2024 Page: 2
I. INTRODUCTION
Jamaryus Moore robbed a liquor store at gunpoint. He pleaded guilty to Hobbs Act
robbery. See 18 U.S.C. § 1951(a). Although he faced an advisory Sentencing Guidelines
range of 51 to 63 months, he requested a downward variance to a term of probation. The
district court gave Moore a choice: accept a 51-month sentence of imprisonment or
commit to a term of probation with the understanding that a violation of its terms of
supervision would result in an 84-month sentence. Moore chose probation. When he
violated the terms of his probation, the district court imposed the previously promised 84-
month sentence. Moore appealed and this court reversed. United States v. Moore, 30
F.4th 1021, 1022 (10th Cir. 2022). Moore concluded the district court plainly erred “by
employing its sentence-in-advance system.” Id. at 1025. Instead, according to Moore,
upon revoking a sentence of probation, district courts commit themselves “to a two-step
process.” Id. at 1026. Moore described the required two-step process in some detail. Id. at
1026-27. On remand, the district court, without any objection from Moore, utilized
Moore’s two-step process and imposed a sentence of 80 months’ imprisonment.
Moore appeals, asserting the district court plainly erred in calculating his sentence
using Moore’s two-step process. In so arguing, he contends the law of the case doctrine
has no impact on the existence of error or on that asserted error’s plainness because (1)
Moore’s discussion of the mandated two-step process is dicta and, in any event, (2) its
two-step process falls within the exception to the doctrine for decisions that are clearly
erroneous and would work a manifest injustice. This court concludes the discussion in
Moore of the required two-step process upon revocation of probation is not dicta. Instead,
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it is a critical component of Moore’s conclusion that the district court erred in employing
a “sentence-in-advance system.” Id. at 1024-25. Furthermore, although this court is not
without some doubt as to the correctness of Moore’s mandatory two-step process, the
decision is not so clearly erroneous that this panel is entitled to disregard it in evaluating
whether the district court plainly erred. In any event, Moore has not demonstrated that
adhering to the rule of law set out in Moore would work upon him a manifest injustice.
Thus, exercising jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, this
court affirms the district court’s judgment.
II. BACKGROUND
In 2018, Moore walked into a liquor store, pointed a handgun at the store clerk;
and demanded money. The clerk placed $100 in a plastic bag and gave the bag to Moore.
Authorities apprehended Moore shortly thereafter. Eventually, Moore pleaded guilty to a
single count of violating § 1951(a). A United States Probation Officer prepared a
Presentence Investigation Report (“PSR); the PSR concluded Moore was subject to an
advisory sentencing range of 51 to 63 months’ imprisonment. Despite facing an advisory
sentencing floor of 51-months’ imprisonment, Moore requested a non-custodial sentence.
The district court initially hesitated at Moore’s request, but ultimately gave him a choice:
accept a 51-month sentence of incarceration or commit to a term of probation with the
understanding a violation of the terms of supervision would result in an 84-month
sentence of incarceration. Moore chose probation.
About ten months after he was sentenced, Moore violated the conditions of his
probation. A United States Probation Officer concluded Moore’s violations were of the
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Grade C variety—the least serious type set out in U.S.S.G. § 7B1.4(a)—and
recommended an advisory sentencing range of 5 to 11 months’ imprisonment. The parties
agreed with this recommendation. Nevertheless, focusing on the bargain it previously
struck with Moore, the district court revoked Moore’s probation and sentenced him to an
84-month term of imprisonment. Moore appealed, challenging the procedural and
substantive reasonableness of his 84-month sentence.
Employing plain error review, this court reversed and remanded. We held that the
district court’s “sentence-in-advance system [was] procedurally unreasonable.” Moore,
30 F.4th at 1025. In reaching this conclusion, Moore began by recognizing the provisions
of 18 U.S.C. § 3565(a) give district courts two options when a defendant violates “a
condition of probation.” Id. at 1026. District courts can (1) continue a defendant “on
probation with or without modifications to the term or conditions” or (2) revoke
probation and “resentence” the defendant under the provisions of 18 U.S.C. §§ 3551 to
3559. Id. Because it revoked Moore’s probation, Moore held the district court
“committed itself to a two-step process under § 3565(a)(2).” Id. After describing how that
two-step process operates, id. at 1026-27, Moore summarized it as follows:
In short, when revoking probation and resentencing under § 3565(a)(2), the Sentencing Guidelines and [United States v. Kelley, 359 F.3d 1302, 1306 (10th Cir. 2004)] require district courts to undertake a two-step analysis. First, they must consider the recommended guideline range in a PSR and impose a sentence for the originally charged crime based only on a defendant’s pre-probation conduct.[1] And second, they must consider
1 Moore explained that the first step of the required process originated from the statutory language of § 3565(a)(2) and the prefatory language of Chapter 7 of the Sentencing Guidelines:
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Chapter 7’s policy statements and sentence a defendant for the probation violation based only on the defendant’s post-probation conduct.[2]
30 F.4th at 1027.
Applying that process to the facts of Moore’s case, Moore held that, at step one,
the district court “locked itself into 51 months’ imprisonment.” Id. at 1026. This was so
because “the district court had already announced that a 51-month sentence of
imprisonment was the appropriate sentence for” Moore’s crime and had done so “after
considering [] Moore’s pre-probation-sentence conduct and the § 3553(a) factors. Id. At
step two, Moore recognized the sentencing grid set out in U.S.S.G. § 7B1.4 “yielded [a]
[A]s the word “resentencing” suggests, a district court must reevaluate the case as it stood when [it] imposed probation. Under § 3553(a)(4)(A), that takes the court back to the probation office’s recommendations, the parties’ objections, and the § 3553(a) factors, including a defendant's history, characteristics, and conduct pre- probation-sentence. The Introduction to Chapter Seven of the Sentencing Guidelines Manual sums it up well: “Under current law, if the court finds that a defendant violated a condition of probation, the court may . . . revoke probation and impose any other sentence that initially could have been imposed.” U.S.S.G. ch. 7, pt. A, background.
30 F.4th at 1026 (emphasis in original). 2 Moore held that the second part of the required process originated from the provisions of 18 U.S.C. § 3553(a)(4), as that provision was interpreted in Kelley:
At the second step, and separately, as laid out in [Kelley, 359 F.3d at 1306], a district court must apply the policy statements in Part B . . . of Chapter Seven . . . to impose any penalty “for the violation of the judicial order imposing supervision.” U.S.S.G. ch. 7, pt. B, introductory cmt. Indeed, Chapter Seven . . . provides its own sentencing grid . . . . So at this second step, the district court must consider the § 7B1.4 sentencing grid for the probation violation—not the sentencing guidelines for the underlying offense.
30 F. 4th at 1026 (emphasis in original). 5 Appellate Case: 22-3173 Document: 010111018526 Date Filed: 03/19/2024 Page: 6
5-to-11 month advisory term for [] Moore’s probation violation.” Id. With all this in
mind, Moore concluded the district court erred because “nothing in the record suggests
that either [it] or the parties undertook the needed two-step analysis.” Id. at 1027.
Furthermore, this error affected Moore’s substantial rights because it was “unclear what
sentence the [district] court would have imposed after explaining its two-step analysis at
sentencing. Id. Moore did not seek panel or en banc rehearing.
On remand, the district court conducted a new sentencing hearing. It summarized
the history of the case and explained its understanding of Moore’s mandate:
[T]he Court of Appeals basically described the process [district courts are] supposed to follow when revoking a sentence of probation and described that the process is a two-step process in which [district courts are] at the first step is to reevaluate the case as it stood when the [district court] imposed probation . . . .
....
Then there’s a second step in the process at which [district courts are] to follow the policy statements in Part B of Chapter 7 of the sentencing guidelines to determine what additional sanction should be imposed on top of that base sentence for the breach of trust associated with the probation violations.
I don’t think I’m supposed to revisit the 51 months that I previously determined would have been an appropriate sentence for the armed robbery conviction[3] but I am supposed to reevaluate the additional component of the sentence associated with his probation violation and then ultimately
3 The district court took care to clarify that if it misinterpreted Moore and was entitled to reconsider the step-one 51-month sentence for the robbery conviction, it “would not go any less than 51 months.” It would, however, consider a step-one component of more than 51 months’ imprisonment.
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describe all that and make a record on it and combine those two for a total sentence that would be imposed today.
The parties agreed with the district court’s assessment of the procedural posture of the
new sentencing proceeding. In so agreeing, Moore noted as follows: “This is not how [I]
had suggested it should happen before the Tenth Circuit. [I] had proposed a different way
of analyzing it under some different statutes but the Tenth Circuit has said this is what we
need to do and this is where we are.”4
Given that all parties agreed the appropriate focus of the new sentencing
proceeding was Moore’s second step—utilizing Chapter 7 of the Sentencing Guidelines
to arrive at an appropriate sentencing component for Moore’s violations of the terms of
his probation—the district court turned to that task. It noted that, at the prior hearing,
Moore was placed under oath and admitted the violations. Although it did not see any
need to revisit Moore’s admissions, it was concerned the record did not adequately
establish the “significance of some of those violations.” Accordingly, at the district
court’s direction, the government adduced evidence as to the seriousness of Moore’s
4 This court has taken judicial notice of the briefs Moore filed in his previous appeal. Binford v. United States, 436 F.3d 1252, 1256 n.7 (10th Cir. 2006) (“The court is permitted to take judicial notice of its own files and records, as well as facts which are a matter of public record.” (alteration and quotation omitted)). A review of those briefs makes clear that argument Moore raised in his first appeal, but gave up (i.e., abandoned) on remand, is not in any way similar to the argument he now raises in this appeal. See infra Section III.B. (concluding the argument Moore advanced in this appeal is forfeited but not waived). Instead, in his prior appeal, Moore argued the district court erred in relying on the “sentencing bargain” it reached with Moore in arriving at a post-probation-revocation sentence because such bargains did not fall within any of the sentencing factors set out in § 3553(a).
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violations of the conditions of his probation.5 In addition, Moore testified on his own
behalf and the parties were given a chance to make their sentencing recommendations.
Finally, Moore made a statement to the court on his own behalf.
The district court then imposed sentence. It indicated it considered “the nature and
circumstances of” Moore’s violations of the terms of his probation, Moore’s
characteristics, the statutory sentencing objectives, Chapter 7’s non-binding policy
statements, and Moore’s mandate. It reiterated that it was locked into a 51-month
sentence as to step one concerning the Hobbs Act robbery. As to step two, the district
court recognized that § 7B1.4 provided an advisory sentencing range of 5-11 months’
incarceration. It nevertheless varied upward significantly from the advisory range,
making a specific and detailed record as to its reasons for doing so.6 Ultimately, the
5 A probation officer testified about Moore’s violations. She testified Moore was pulled over in Seattle, Washington, in a stolen van with two ski masks and three other people, two of whom were arrested at the scene on felony warrants. Moore refused to give his name and, ultimately, gave a false name during this encounter. Moore had contact with the police again the following day and was taken into custody due to an outstanding federal warrant. Before he left Kansas for Washington state, Moore knew he had a federal court hearing regarding other violations of the conditions of his parole. Instead of appearing for that hearing, he absconded. 6 Relying on Application Note 4 to § 7B1.4, the district court recognized Moore received a substantial downward variance at his initial Hobbs-Act-robbery sentencing proceeding. Although Moore committed an armed robbery and was facing an advisory sentencing range of 51 to 63 months’ imprisonment, he received a sentence of probation. Noting this sentence amounted to the largest downward variance it had ever granted, the district court relied on Application Note 4 to conclude Moore’s current violation was a “stunning breach of trust.” It concluded an upward variance of 12 months to the advisory range in § 7B1.4 was an appropriate adjustment to the step-two sentence.
The district court then turned its focus to the probation violation of leaving the District of Kansas. Although categorized as a Grade C violation, the district court 8 Appellate Case: 22-3173 Document: 010111018526 Date Filed: 03/19/2024 Page: 9
district court concluded the appropriate step-two advisory sentencing range was 32 to 38
months’ imprisonment. This range, when combined with the 51-month term of
imprisonment from step-one, resulted in a total advisory range of 83 to 89 months’
incarceration. The district court sentenced Moore to an 80-month term of imprisonment.
III. ANALYSIS
A. Introduction
Moore asserts the district court erred when it utilized Moore’s two-step process to
arrive at his sentence upon revocation of probation. He contends the provisions of the
United States Code governing criminal sentencing do not authorize a two-step procedure.
Instead, Moore claims that, upon revocation of probation, district courts must sentence
defendants in accordance with §§ 3551 to 3559. See 18 U.S.C. § 3565 (providing that
explained why the violation was more serious than it appeared. Moore traveled to Washington state, removing any question as to the intentional nature of his violation. He was caught in a stolen car in the company of three other felons, two of which were immediately arrested on outstanding warrants. There were ski masks in the car and Moore lied to the officers to conceal his identity. Moore’s trip to Seattle came after he was alerted to an upcoming hearing to address his violations. Thus, the district court concluded Moore’s actions amounted to absconding. It also found Moore’s testimony about the trip lacked credibility. The district court concluded an additional 9-month upward variance to § 7B1.4’s advisory sentencing range was appropriate based on these considerations.
Finally, the district court determined an adjustment to § 7B1.4’s advisory sentencing range was necessary because Moore repeatedly lied to the court and his probation officer. These lies included getting kicked out of a residential facility, lying about a police encounter and claiming it was his brother, lying about the reasons for his prohibited visits to Wichita, and lying about the reasons for absconding to Seattle. The district court viewed Moore’s behavior as “deceptive conduct and the nature of obstruction of justice to help minimize or avoid detection on some of these violations, or minimize the significance of it.” Given this conduct, the district court varied upward an additional 6-months from § 7B1.4’s sentencing grid. 9 Appellate Case: 22-3173 Document: 010111018526 Date Filed: 03/19/2024 Page: 10
upon revocation of probation, district courts must resentence defendants under
Subchapter A of Chapter 227 of Title 18). Moore notes that, in relevant part, Subchapter
A requires courts to “impose a sentence sufficient, but not greater than necessary, to
comply with the purposes” of the sentencing factors set out in § 3553(a). According to
Moore, § 3553(a) speaks in the singular of “a sentence,” making no mention of a two-
step procedure whereby a court fashions one sentence based on pre-probation facts and
one sentence based on post-probation facts. Moreover, Moore argues, § 3553(a)(4)
requires district courts, “in the case of a violation of probation,” to consider the Chapter 7
sentencing ranges and policy statements before imposing a sentence. In contrast to this
statutory command, Moore claims the district court conducted two distinct § 3553(a)
analyses, one based on the original advisory Sentencing Guidelines for Hobbs Act
robbery—i.e., Chapters 2 through 5—and a second based on Chapter 7’s sentencing
ranges and policy statements.
Moore submits that the Sentencing Guidelines confirm that district courts are not
empowered to fashion two different sentences based on pre-probation and post-probation
facts respectively. He notes that Chapter 7, like § 3553(a), speaks in the singular when it
refers to “the sentence imposed upon revocation,” “a term of imprisonment,” and “the
applicable range of imprisonment.” See U.S.S.G. ch. 7, pt. A.3; § 7B1.3(b), (e). Chapter 7
also provides a comprehensive list of considerations the court must weigh when
fashioning the appropriate probation revocation sentence. U.S.S.G. § 7B1.4 cmt. nn.1-6.
Moore declares that nowhere in this list of considerations is there any hint district courts
are entitled, let alone obligated, to make two siloed sentencing determinations based on
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pre-probation and post-probation facts. In that regard, Moore asks this court to recognize
that when the Sentencing Commission intends to impose complex, multi-part procedures,
it methodically describes those procedures. See, e.g., U.S.S.G. § 3D1.1. Further
undermining any notion that there exists a rigid pre-probation/post-probation division
upon revocation, Moore observes that the Sentencing Guidelines expressly detail how the
original sentence should factor into the district courts’ probation-revocation-sentencing
decisions. Application Note 4 to § 7B1.4 explains courts should consider the amount of
leniency given at original sentencing hearings when fashioning probation revocation
sentences. Specifically, if the original sentence was a result of a downward departure, an
upward departure might be appropriate for the probation violation. U.S.S.G. § 7B1.4 cmt.
n.4.
Moore thus argues the district court erred on remand in imposing any part of his
post-revocation sentence on any factor other than those set out in Chapter 7 of the
Sentencing Guidelines. That is, the district court erred in imposing a 51-month sentence
at Moore’s step one based on pre-revocation, non-Chapter 7 considerations. See U.S.S.G.
ch. 7, pt. A.2 (“The statutory authority to ‘suspend’ the imposition or execution of
sentence in order to impose a term of probation was abolished upon implementation of
the sentencing guidelines.”).7
7 To be precise, Moore breaks apart his claim of error into two components. First, he argues the district court erred, both at step-one and in imposing an overall sentence, by failing to consider Chapter 7. Second, he claims the district court erred in imposing two different sentences, one based entirely on pre-probation facts and one based on facts relating exclusively to his probation revocation. In this court’s view, these claims sufficiently overlap so that they can be treated together in 11 Appellate Case: 22-3173 Document: 010111018526 Date Filed: 03/19/2024 Page: 12
B. Standard of Review
Moore recognizes he did not raise before the district court the sentencing
challenge he raises on appeal. Accordingly, he asserts this court should review the matter
for plain error. For its part, the government contends Moore affirmatively waived his
challenge to the propriety of the district court’s two-step sentencing process. This court
can detect no indication in the record that Moore “intentional[ly] relinquish[ed] or
abandon[ed] . . . a known right,” see United States v. Carrasco-Salazar, 494 F.3d 1270,
1272 (10th Cir. 2007) (quotation omitted), when he conceded below that the district court
was bound by Moore to utilize a two-step sentencing process. Thus, he forfeited, rather
than waived, the issue he now raises on appeal.
“Typically,” this court does “not address arguments raised for the first time on
appeal.” EFLO Energy v. Devon Energy Corp., 66 F.4th 775, 792 (10th Cir. 2023). If a
theory “simply [was not] raised before the district court,” it is forfeited and this court may
reverse only if an appellant satisfies the rigorous plain error standard. Richison v. Ernest
Grp., Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011). On the other hand, when a party
intentionally relinquishes or abandons an argument in the district court, this court
“usually deem[s] it waived and refuse[s] to consider it.” Id. at 1127. Waiver “occurs
when a party deliberately considers an issue and makes an intentional decision to forgo”
resolving this appeal. Both rely on the same statutory and Sentencing Guidelines language to argue that a sentence imposed upon revocation of probation must be a single component sentence based on the provisions of § 3553(a) and sentencing considerations set out in Chapter 7. Furthermore, both rise or fall based on Moore’s ability to convince this court it can disregard Moore’s holding as to the requisite sentencing process district courts must undertake upon revocation of probation. 12 Appellate Case: 22-3173 Document: 010111018526 Date Filed: 03/19/2024 Page: 13
raising it. United States v. Malone, 937 F.3d 1325, 1327 (10th Cir. 2019). Abandonment
“requires some evidence that the waiver is knowing and voluntary.” United States v. Egli,
13 F.4th 1139, 1144 (10th Cir. 2021). In summary, “waiver is accomplished by intent, but
forfeiture comes about through neglect.” Id. (quotation and alteration omitted). Given
such an exacting standard, this court “typically find[s] waiver in cases where a party has
invited the error that it now seeks to challenge, or where a party attempts to reassert an
argument that it previously raised and abandoned below.” United States v. Zubia-Torres,
550 F.3d 1202, 1205 (10th Cir. 2008); see also id.at 1205-07 (discussing at length the
cases in which this court has found a waiver).
The government asserts Moore waived his appellate argument because he
(1) failed to seek panel or en banc rehearing following the decision in Moore; (2) failed to
object to the two-step procedure when the district court summarized that procedure at the
beginning of the on-remand sentencing hearing, instead acknowledging “[t]hat is how the
Tenth Circuit has said this needs to happen”; and (3) made an argument concerning the
appropriate sentence under Moore’s two-step framework. In contrast to the government’s
assertions, none of these actions demonstrate an intentional abandonment on Moore’s
part. Although the failure to object certainly means the issue is not preserved, it only
signifies an abandonment if it is accompanied by indications of knowing and voluntary
intent. The only such purported evidence identified by the government is the failure to
seek rehearing in Moore and a recognition at the on-remand sentencing proceeding that
Moore governed. The fact Moore was aware of, and thought the district court bound by,
Moore’s two-step process does not evidence he was aware of, and consciously
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disregarded, the issue with the two-step process he now raises on appeal. After all, as
noted by Moore in his reply brief, he had nothing to gain by consciously electing to
proceed under Moore’s two-step process. Under that process, he started at a 51-month
step-one sentence, with much room to grow under step-two; under the process he presses
on appeal, he starts at an advisory sentencing range of 5 to 11 months’ imprisonment with
the further requirement that any deviations from the advisory range be hitched to
Chapter 7 and § 3553(a). The relevant question is whether Moore identified the alleged
contra-statutory basis of Moore’s two-step process during the district court proceedings
and made a conscious decision to abandon the issue. There is no such evidence in the
record. Thus, the issue he raises on appeal is forfeited, not waived.
To obtain reversal on his forfeited claim of error, Moore must demonstrate the
district court committed plain error. United States v. Rosales-Miranda, 755 F.3d 1253,
1258 (10th Cir. 2014). That is, he must “demonstrate: (1) an error, (2) that is plain, which
means clear or obvious under current law, and (3) that affects substantial rights. If he
satisfies these criteria, this Court may exercise discretion to correct the error if (4) it
seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
at 1258 (quotation and emphasis omitted). “[R]elief on plain error review is difficult to
get, as it should be.” Id. (quotations omitted). “Accordingly, we will find plain error only
when an error is particularly egregious and the failure to remand for correction would
produce a miscarriage of justice.” Id. (quotation omitted).
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C. Merits
As both parties recognize, Moore can only establish plain error on the part of the
district court by identifying a justification for this court to disregard the two-step process
set out in Moore. See In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (“We cannot
overrule the judgment of another panel of this court. We are bound by the precedent of
prior panels absent en banc reconsideration or a superseding contrary decision by the
Supreme Court.”); United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991) (“The
law of the case doctrine posits that when a court decides upon a rule of law, that decision
should continue to govern the same issues in subsequent stages in the same case.”
(quotation and citation omitted)). Attempting to do so, Moore argues this court is not
bound by Moore because Moore’s discussion of the two-step process is dicta. In the
alternative, assuming the relevant discussion in Moore is not dicta, Moore asserts this
court can disregard Moore under an exception to the law of the case doctrine for
decisions that are “clearly erroneous and would work a manifest injustice.” Monsisvais,
946 F.2d at 117 (quotation omitted). As set forth more fully below, Moore’s discussion of
the mandatory post-revocation sentencing process is not dicta. Furthermore, even
assuming the clearly-erroneous/manifest-injustice exception to the law of the case
doctrine could potentially allow this court to disregard Moore, Moore has not established
either of the two required components of that exception.
1. Dicta
“A panel of this Court is bound by a holding of a prior panel . . . but is not bound
by a prior panel’s dicta.” United States v. Titties, 852 F.3d 1257, 1273 (10th Cir. 2017)
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(quotation and alteration omitted). “Dicta are statements and comments in an opinion
concerning some rule of law or legal proposition not necessarily involved nor essential to
determination of the case at hand.” Id. (quotation and alteration omitted). Notably, this
court has cautioned that adopting an “expansive view of what constitutes dicta” would
interfere with bedrock principles of stare decisis. Thompson v. Weyerhaeuser Co., 582
F.3d 1125, 1130 (10th Cir. 2009). Given this standard, this court must reject Moore’s
assertion that Moore’s mandated two-step sentencing process upon revocation of
probation is dicta.
Moore specifically held that when a district court revokes probation, it “commit[s]
itself to a two-step process under § 3565(a)(2).” 30 F.4th at 1026. In concluding the
district court’s error in failing to utilize that two-step process was plain, Moore held that
the requisite two-step process flowed directly from the “plain” provisions of the United
States Code relating to imposing criminal sentences; Chapter 7 of the Sentencing
Guidelines; and this court’s precedents, particularly our decision in Kelley, 359 F.3d at
1306. Moore 30 F.4th at 1026-27. Finally, Moore held that the plain error it identified
affected Moore’s substantial rights because there existed a reasonable probability the
identified error altered the sentence Moore received. Id. at 1027. That is, there existed a
reasonable probability Moore would have received a different sentence upon revocation
of his probation if the district court had properly employed the mandated two-step
process set out in Moore. Id. (“Here, there is such a reasonable probability because it’s
unclear what sentence the court would have imposed after explaining its two-step
analysis at sentencing.”). Importantly, this court has previously held that when it is
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necessary to define a legal standard to analyze the substantial-rights prong of plain error
review, the explication of that legal standard is not dicta. United States v. Carillo, 860
F.3d 1293, 1301 n.2 (10th Cir. 2017). Nor is it relevant Moore did not consider the
arguments Moore now presses in resolving his prior appeal. Thompson, 582 F.3d at 1130
(holding, in the context of rejecting an assertion a rule of law announced by a prior panel
was dicta, that the question did not turn on “what might have happened had other
arguments been made to the panel that decided the issue first”).
The two-step sentencing process set out in Moore was integral to its holding that
the district court plainly erred and that the error affected Moore’s substantial rights.
Accordingly, that two-step process is not dicta but is, instead, binding Tenth Circuit
precedent. See, e.g., Titties, 852 F.3d at 1273; Thompson, 582 F.3d at 1129-30.
2. Law of the Case
Pursuant to the law of the case doctrine, “when a court decides upon a rule of law,
that decision should continue to govern the same issues in subsequent stages in the same
case.” Monsisvais, 946 F.2d at 115 (quotation omitted). “Law of the case rules have
developed to maintain consistency and avoid reconsideration of matters once decided
during the course of a single continuing lawsuit.” Kennedy v. Lubar, 273 F.3d 1293, 1298
(10th Cir. 2001) (quotation omitted). “Particularly with today’s crowded dockets, a
litigant given one good bite at the apple should not have a second. In short, it is almost
axiomatic that one panel of this court cannot overrule another panel.” United States v.
Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998) (quotation and citation omitted).
Nevertheless, the law of the case doctrine is a rule of practice, not a limit on the power of
17 Appellate Case: 22-3173 Document: 010111018526 Date Filed: 03/19/2024 Page: 18
the court. Monsisvais, 946 F.2d at 116. That is, the doctrine “is not an inexorable
command, but is to be applied with good sense.” Id. at 117 (quotations omitted).
“Nevertheless, the circumstances justifying a departure from the law of the case are
narrow.” Id.
This court has recognized three generalized exceptions to the doctrine’s
applicability. Id. The only such exception raised by Moore on appeal is the one for
decisions that are “clearly erroneous and would work a manifest injustice.” Id.; see also
United States v. Irving, 665 F.3d 1184, 1192 n.12 (10th Cir. 2011). All three exceptions
to the doctrine, specifically including the clearly-erroneous/manifest-injustice exception,
are construed narrowly, requiring application of the doctrine “unless one of the
exceptions specifically and unquestionably applies.” Monsisvais, 946 F.2d at 117
(quotation omitted). Moore has not demonstrated Moore’s holding is clearly erroneous.
Nor has he demonstrated the application of Moore’s holding to him would work a
manifest injustice. Having failed to demonstrate both requirements of the clearly-
erroneous/manifest-injustice exception, Moore has not provided this court with a valid
justification for avoiding the law of the case set out in Moore. See Monsisvais, 946 F.2d
at 117 (describing the two requirements of the clearly-erroneous/manifest-injustice
exception in the conjunctive); see also United States v. Lake, 556 F. App’x 706, 708
(10th Cir. 2014) (unpublished disposition cited exclusively for its persuasive value)
(holding that there was no need to decide whether a prior panel’s decision was clearly
erroneous because there existed no manifest injustice); United States v. Nichols, 38 F.
App’x 534, 542 n.5 (10th Cir. 2002) (unpublished disposition cited exclusively for its
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persuasive value) (“Because we find our prior rulings were not clearly erroneous, we
need not consider whether those rulings worked a manifest injustice.”).
This court notes at the outset that there is reason to doubt whether the clearly-
erroneous/manifest-injustice exception empowers this court to disregard a prior panel’s
legal ruling. See Dobbs v. Anthem Blue Cross & Blue Shield, 600 F.3d 1275, 1281 n.5
(10th Cir. 2010) (declining to resolve the issue but noting that reading the exception to
empower such conduct would place it at odds with the Tenth Circuit’s strong mandate of
stare decisis). It is unnecessary to resolve this question because the court cannot say the
relevant holding in Moore is clearly erroneous. In trying to demonstrate the two-step
post-revocation sentencing process set out in Moore is clearly erroneous, Moore faces a
“formidable task.” Alvarez, 142 F.3d at 1247. Indeed, twenty-five years ago, this court
noted that “while courts may often pay lip service to the clearly erroneous/manifest
injustice exception, they rarely, if ever, invoke it.” Id. Alvarez cataloged the caselaw and
noted that it could discover only one case, in the Ninth Circuit, “in which a panel used
this exception.” Id. (citing Jeffries v. Wood, 75 F.3d 491, 493-94 (9th Cir. 1996)). And
there, the en banc Ninth Circuit reversed, holding that the panel erred in concluding the
stringent clearly-erroneous/manifest-injustice standard was satisfied. Id. (citing Jeffries v.
Wood, 114 F.3d 1484, 1492-93 (9th Cir.) (en banc), cert. denied, 522 U.S. 1008 (1997)).
Notably, Moore has not identified any additional such cases since this court decided
Alvarez. The reason for this state of affairs is that to meet the “high burden” of the
exception, an appellant must show the prior decision was “dead wrong” not “just maybe
or probably wrong.” TFWS, Inc. v. Franchot, 572 F.3d 186, 194 (4th Cir. 2009).
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Moore has not satisfied this onerous burden. If presented with the issue as one of
first impression, this panel might very well conclude Moore’s reading of the relevant
statutes and Sentencing Guidelines is correct. Nevertheless, Moore cites to and analyzes
all relevant statutes and Guidelines provisions, grapples with this court’s precedents, and
sets out a reasoned and considered legal determination.8 The plausibility of the scheme
set out in Moore is confirmed by Moore’s failure, through multiple additional procedural
steps in this litigation, to arrive at the argument he now raises on appeal. See United
States v. Hendrix, 673 F. App’x 850, 854-55 (10th Cir. 2016) (unpublished disposition
cited exclusively for its persuasive value). Moore has not demonstrated the decision in
Moore is so blatantly erroneous that this panel is entitled to be the first to employ the
clearly-erroneous/manifest-injustice exception to disregard a prior legal determination by
a panel of this court.
Nor, under the particular facts of this case, can Moore demonstrate manifest
injustice. Importantly, there is no doubt that even under the sentencing scheme advocated
by Moore, he could receive the very same sentence the district court imposed on remand.
Subpart 2 to Part A of Chapter 7 makes clear that upon revocation of probation, district
courts are legally empowered to “impose any sentence that initially could have been
8 In concluding Moore’s relevant holding is not dead wrong, this court declines to undertake the kind of extensive comparative analysis suggested in Moore’s appellate brief. Such an approach would defeat the very purposes of the law of the case doctrine. Alvarez, 142 F.3d at 1247 (“This doctrine is based on sound public policy that litigation should come to an end and is designed to bring about a quick resolution of disputes by preventing continued re-argument of issues already decided. Of course, this rule also serves the purposes of discouraging panel shopping at the court of appeals level.” (citation and quotations omitted)). 20 Appellate Case: 22-3173 Document: 010111018526 Date Filed: 03/19/2024 Page: 21
imposed.” The statutory maximum for a violation of the Hobbs Act is twenty years’
imprisonment. 18 U.S.C. § 1951(a). It is certainly true, as Moore argues, the district court
would be obligated to consider the sentencing factors set out in Chapter 7, specifically
including the 5-to-11-month advisory sentencing ranges set out in § 7B1.4(a), in
fashioning his unified sentence under the scheme he advocates. Nevertheless, the district
court would also be entitled to take into account each of the considerations set out in
§ 3553(a) in deciding whether to vary from §7B1.4(a) advisory sentencing ranges. The
record in this case leaves absolutely no doubt the district court would not impose a lower
sentence under the scheme advocated for by Moore. Nor, given the district court’s careful
development of the record regarding the nature of Moore’s violations of the conditions of
his probation, does there exist any reasonable probability this court would conclude on
appeal that such a sentence, even though a truly substantial upward variance, is
substantively unreasonable. See United States v. Barnes, 890 F.3d 910, 915 (10th Cir.
2018) (describing at length the exceedingly broad nature of the district court’s discretion
in arriving at a substantively reasonable sentence). Indeed, although Moore argued in
Moore that his sentence was unreasonable, 30 F.4th at 1024, he has made no such
argument in this appeal.
3. Conclusion
Moore’s holding—that upon revocation of a term of probation district courts
commit themselves to the two-part sentencing scheme set out therein—is not dicta. Nor
can Moore escape that holding through the clearly-erroneous/manifest-injustice exception
to the law of the case doctrine. Thus, in considering whether the district court committed
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plain error in sentencing Moore on remand, this court is bound by the rule of law set out
in Moore. Obviously then the district court did not err, let alone plainly do so, when it
complied with Moore’s mandate.
IV. CONCLUSION
For those reasons set out above, the judgment of the United States District Court
for the District of Kansas is hereby AFFIRMED.