United States v. Redifer

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 23, 2018
• Docket: 17-3127
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 23, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 17-3127 v. (D.C. No. 2:12-CR-20003-CM-10) (D. Kansas) MICHAEL C. REDIFER,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges. _________________________________

Michael Redifer challenges his 254-month sentence, which was imposed on

remand after affirmance of his conviction by this court. Mr. Redifer’s appointed

counsel filed a brief and moved to withdraw pursuant to Anders v. California, 386

U.S. 738 (1967), asserting there are no meritorious grounds for appeal. Exercising

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we grant counsel’s

motion to withdraw and dismiss the appeal.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. BACKGROUND

Mr. Redifer was convicted of conspiracy to possess with intent to distribute

and distribution of fifty grams or more of methamphetamine. The district court

sentenced him to 360 months’ imprisonment followed by a five-year term of

supervised release. On direct appeal, we affirmed Mr. Redifer’s conviction but

remanded the case for resentencing because the presentence report (PSR) incorrectly

calculated the drug quantity attributable to Mr. Redifer. United States v. Redifer, 631

F. App’x 548, 570–71 (10th Cir. 2015) (unpublished).

On remand, the district court recalculated the quantity of drugs attributed to

Mr. Redifer and lowered his sentence from 360 months to 254 months. Mr. Redifer

timely appealed. Mr. Redifer’s appointed counsel filed a brief and Motion to

Withdraw as Counsel under Anders v. California.

In Anders, the Supreme Court held that if counsel finds an appeal to be

“wholly frivolous, after a conscientious examination . . . he should so advise the

court and request permission to withdraw.” 386 U.S. at 744. Accompanying the

request to withdraw, counsel must also: 1) file a brief identifying anything in the

record that might arguably support the appeal and 2) deliver a copy of the brief to his

client and allow the client time to raise any challenges or claims he chooses. Id. This

court must then, “after a full examination of all the proceedings,” decide whether the

case is wholly frivolous. Id. If, after an independent review of the record, we find

there are no nonfrivolous claims, we may grant counsel’s request to withdraw and

2 dismiss the appeal. Id. If, however, we find “any of the legal points arguable on their

merits,” we must afford the defendant assistance of counsel to argue his appeal. Id.

In his Anders Brief, counsel argues that he has examined the entire record and

found no meritorious grounds for appeal. Consequently, he requests permission to

withdraw as Mr. Redifer’s counsel. Counsel first notes that six of the eight issues Mr.

Redifer wishes to raise on appeal relate to Mr. Redifer’s conviction, and are thus

barred under the law of the case doctrine. The remaining two issues relate to Mr.

Redifer’s sentence and are similarly meritless. First, Mr. Redifer challenges the scope

of our remand, but counsel correctly notes that Mr. Redifer’s argument is barred by

the mandate rule. Second, counsel has found no nonfrivolous grounds for supporting

Mr. Redifer’s argument that the sentence is procedurally or substantively

unreasonable.

Mr. Redifer responded to counsel’s Anders motion. In his Response, Mr.

Redifer indicates he no longer desires formal representation by his appointed counsel,

but he contends his appeal should not be dismissed. Relying on the same eight issues

addressed by counsel, Mr. Redifer urges this court to reverse his conviction and

sentence.

Because our independent review is consistent with counsel’s assessment of Mr.

Redifer’s claims, we dismiss the appeal and grant the motion to withdraw.1

1 Because Mr. Redifer’s Response was submitted pro se, we liberally construe his arguments. See White v. Colorado, 82 F.3d 364, 366 (10th Cir. 1996). However, our liberal construction does not relieve the plaintiff of his burden to present 3 II. DISCUSSION

Mr. Redifer raises six claims challenging the constitutionality of his

conviction: two claims of unconstitutional actions by the government and his

appointed counsel, one claim of ineffective assistance of counsel, two claims

regarding witness coercion and hearsay, and one claim of abuse of discretion by the

district court in denying his Motion for Acquittal. Mr. Redifer also raises two claims

related to his sentence: one claim alleging that our mandate to the district court for

resentencing was incorrect and that the district court should have gone beyond the

scope of our mandate and one claim alleging that his sentence should be vacated

because the district court relied on illegally obtained evidence and coerced testimony.

For the reasons we now discuss, none of the claims provides a nonfrivolous ground

for appeal.

A. Mr. Redifer’s Claims Regarding his Conviction

Regarding his conviction, Mr. Redifer alleges that his counsel was ineffective

by failing to communicate with Mr. Redifer throughout his trial and for not

advancing arguments Mr. Redifer requested be advanced on his behalf. Next, Mr.

Redifer argues that counsel and other government employees “willfully conspir[ed]”

to participate in unconstitutional acts leading to his “unlawful” conviction, including

illegally obtaining evidence and suppressing exculpatory evidence offered by Mr.

Redifer. He also claims to possess new evidence that key government witnesses

sufficient facts to state a legally cognizable claim, and we will not make his arguments for him. Id. 4 committed perjury and were coerced by the prosecutor to provide false testimony.

These claims are barred by the law of the case doctrine.

Under that doctrine, “when a case is appealed and remanded, the decision of

the appellate court establishes the law of the case and ordinarily” precludes “both the

trial court on remand and the appellate court in any subsequent appeal” from

revisiting issues already decided. Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183

(10th Cir. 1995); see Bishop v. Smith, 760 F.3d 1070, 1084 (10th Cir. 2014). This

doctrine exists in large part to prevent the “continued re-argument of issues already

decided.” Gage v. Gen. Motors Corp., 796 F.2d 345, 349 (10th Cir. 1986). On direct

appeal, we upheld Mr. Redifer’s conviction. Redifer, 631 F. App’x at 552. Therefore,

Mr. Redifer is barred from raising these claims unless he can satisfy one of the three

exceptions to the law of the case doctrine.

To satisfy the “exceptionally narrow” grounds for departure from the law of

the case doctrine, Mr. Redifer must prove that: (1) the “evidence in a subsequent trial

is substantially different;” (2) the “controlling authority has subsequently made a

contrary decision of the law applicable to such issues;” or (3) the “decision was

clearly erroneous and would work a manifest injustice.” See United States v. Alvarez,

142 F.3d 1243, 1247 (10th Cir. 1998).

Mr. Redifer cannot satisfy any of the exceptions to the law of the case

doctrine. He has not identified, and we have not located in the record, any new

evidence that is substantially different from the evidence already considered by this

court. See Wessel v. City of Albuquerque, 463 F.3d 1138, 1144 (10th Cir. 2006). He

5 has cited no cases, and we are aware of none, identifying a change in authority. See

Zinna v. Congrove, 755 F.3d 1177, 1182 (10th Cir. 2014) (holding that the

defendant’s claim was barred by the law of the case doctrine where he did not cite

any cases from this court to support his claim that an exception should apply). And

Mr. Redifer has not shown, and our independent review has not revealed, that the

decision was clearly erroneous and would work a manifest injustice. See Alvarez, 142

F.3d at 1247.

Mr. Redifer’s claims challenging his conviction are barred by the law of the

case doctrine. Therefore, the appeal of these issues is wholly frivolous.

B. Mr. Redifer’s Claims Regarding his Sentence

Mr. Redifer also raises two challenges concerning his sentence. First, Mr.

Redifer argues that our mandate to the district court should be revoked to avoid a

manifest injustice. Second, Mr. Redifer argues that his sentence should be vacated

because the district court relied on illegally obtained evidence and false testimony in

resentencing him.

Similar to the law of the case doctrine, the mandate rule states that a district

court on remand “must comply strictly with the mandate rendered by the reviewing

court.” Colo. Interstate Gas Co. v. Nat. Gas Pipeline Co. of Am., 962 F.2d 1528,

1534 (10th Cir. 1992). Therefore, district courts may decide issues that are “part and

parcel” of the remanded issue, but should not deviate beyond the scope of an

appellate court’s mandate. Mason v. Texaco, Inc., 948 F.2d 1546, 1553–54 (10th Cir.

6 1991). However, the mandate rule is a “discretion-guiding” rule subject to the

interests of justice. United States v. Moore, 83 F.3d 1231, 1234 (10th Cir. 1996).

Here, our mandate to the district court was quite limited: a “remand for

resentencing, with further findings concerning the appropriate drug quantity to be

attributed” to Mr. Redifer. Redifer, 631 F. App’x at 570. To convince us to depart

from this mandate, Mr. Redifer must show that an exception to the mandate rule

applies. See Moore, 83 F.3d at 1234. Exceptions which might supersede the mandate

rule include: “(1) a dramatic change in controlling legal authority; (2) significant new

evidence that was not earlier obtainable through due diligence but has since come to

light; or (3) that blatant error from the prior sentencing decision would result in

serious injustice if uncorrected.” Id. Moreover, while courts have the power to

modify a mandate that was “procured by fraud” and to “prevent an injustice, or to

preserve the integrity of the judicial process,” revoking or modifying a judicial

mandate is only proper in “extraordinary circumstances.” Ute Indian Tribe of Uintah

and Ouray Reservation v. Utah, 114 F.3d 1513, 1522 (10th Cir. 1997) (quotation

marks omitted).

Upon independent review, we are unpersuaded that our mandate to the district

court should be revoked or modified. Mr. Redifer has failed to argue that an

exception to the mandate rule should apply, and our review of the record reveals no

extraordinary circumstances that would warrant such relief. Mr. Redifer has failed to

show a dramatic change in controlling legal authority, and we are aware of none. See

Moore, 83 F.3d at 1234. Similarly, Mr. Redifer has not directed us to, and we have

7 not identified, any significant newly discovered evidence. See Wessel, 463 F.3d at

1144. Finally, there is no evidence that the district court made an error in reaching its

sentencing decision, much less a blatant error that would result in serious injustice if

uncorrected. See Moore, 83 F.3d at 1234. Therefore, Mr. Redifer’s first challenge to

his sentence is barred by the mandate rule.

Mr. Redifer next argues that his sentence should be vacated because the

district court relied upon coerced and unreliable testimony from two witnesses.2 We

construe this argument as a challenge to the reasonableness of the district court’s

sentence. Again we agree with counsel that this claim lacks merit.

When a sentence is remanded, the district court must look to the appellate

court’s mandate for “any limitations on the scope of the remand and, in the absence

of such limitations, exercise discretion in determining the appropriate scope.” United

States v. West, 646 F.3d 745, 749 (10th Cir. 2011). Here, our mandate was limited to

“resentencing, with further findings concerning the appropriate drug quantity”

attributable to Mr. Redifer. Redifer, 631 F. App’x at 570. Thus, the only issues

properly before the district court, and thus available for review on appeal, are the

2 To the extent that Mr. Redifer challenges the credibility of the witnesses’ testimony, such determinations are within the province of the district court. See United States v. Villa-Chaparro, 115 F.3d 797, 801 (10th Cir. 1997). Furthermore, Mr. Redifer unsuccessfully challenged the use of his co-defendants’ hearsay statements and their alleged perjured testimony on direct appeal. United States v. Redifer, 631 F. App’x 548, 558–59 (10th Cir. 2015) (unpublished). The law of the case doctrine bars further review of this claim. See Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995). We therefore do not address Mr. Redifer’s argument that the district court should not have relied on the witnesses’ testimony; instead, we determine only whether the district court’s sentence was reasonable in light of the evidence presented to it. 8 calculation of the quantity of drugs attributable to Mr. Redifer and the appropriate

sentence under that quantity.

We review the district court’s sentence for reasonableness under a deferential

abuse-of-discretion standard. United States v. Alapizco-Valenzuela, 546 F.3d 1208,

1214 (10th Cir. 2008). “Reasonableness review is a two-step process comprising a

procedural and a substantive component.” Id. (quotation marks omitted). “Procedural

review asks whether the sentencing court committed any error in calculating or

explaining the sentence.” Id. Substantive review looks at “whether the length of the

sentence is reasonable given all the circumstances of the case in light of the factors

set forth in 18 U.S.C. § 3553(a).” Id. at 1215 (quotation marks omitted).

A review of the record reveals no procedural deficiencies in the district court’s

sentencing calculation. The district court relied upon the Second Amended PSR to

recalculate Mr. Redifer’s Guidelines sentencing range. The updated PSR directly

addressed and corrected for the errors in the first PSR; namely, the lack of evidence

tying Mr. Redifer to drug activity between December 2010 and mid-May 2011. See

Redifer, 631 F. App’x at 569–70. Using the updated PSR, the district court concluded

that Mr. Redifer was responsible for 737.1 grams of methamphetamine during the

months of September, October, and part of November, 2010. This placed Mr.

Redifer’s base offense level at 30.3 After taking into consideration several offense

3 Counsel notes that strictly following our prior consideration of the issue would yield 594 grams attributable to Mr. Redifer. And at the resentencing hearing, defense counsel argued the appropriate drug quantity was 510.29 grams. But, as a base offense level of 30 encompasses a range of 500 grams to 1.5 kilograms of 9 characteristics, the district court arrived at a total offense level of 38 which, when

paired with Mr. Redifer’s criminal history category of 2, resulted in a Guidelines

sentencing range of 262 to 327 months. Relying on the sentencing factors identified

in 18 U.S.C. § 3553(a)(2), the district court tentatively sentenced Mr. Redifer at the

lowest end of the Guidelines range and, after granting him credit for serving eight

months on a related state court conviction, imposed a final sentence of 254 months’

imprisonment.

The district court’s sentence “is entitled to a presumption of substantive

reasonableness on appeal” because it is within Mr. Redifer’s properly calculated

Guidelines sentencing range. See Alapizco-Valenzuela, 546 F.3d at 1215. Mr. Redifer

has failed to identify, and independent review of the record does not reveal, any

evidence that the district court abused its discretion by acting in a way that “was

arbitrary, capricious, whimsical, or manifestly unreasonable when it weighed the

permissible § 3553(a) factors.” United States v. Sanchez-Leon, 764 F.3d 1248, 1267

(10th Cir. 2014) (internal quotation marks omitted). Thus, the district court’s

sentence is reasonable.

After a thorough review of the record, we agree with counsel that Mr.

Redifer’s appeal is wholly frivolous.

methamphetamine, either quantity would yield the same sentencing range. Therefore, any potential error was harmless. 10 CONCLUSION

We grant counsel’s Motion to Withdraw, and we dismiss Mr. Redifer’s

appeal.4

Entered for the Court

Carolyn B. McHugh Circuit Judge

4 In addition to his Response, Mr. Redifer has submitted a Notice of Confusion and a Motion to Correct the Record on Appeal. We interpret the Notice of Confusion as a Motion to Compel the Government to File a Response to the Anders Brief. We deny both motions. 11