United States v. Rollow

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 27, 2007
• Docket: 06-6072
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS February 27, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee, No. 06-6072 v. (D.C. No. 02-CR-08-T) (W .D. Okla.) SHIRLEY M AYE ROLLOW ,

Defendant-Appellant.

OR D ER AND JUDGM ENT *

Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.

A jury convicted Shirley Rollow of conspiring to possess and distribute a

listed chemical knowing that it would be manufactured into a controlled

substance, and of structuring transactions to evade reporting requirements in

violation of 21 U.S.C. § 841(c)(2) and 31 U.S.C. § 5324(a)(3). The convictions

stemmed from allegations that M s. Rollow was involved in an illicit scheme to

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. distribute pseudoephedrine, a precurser to methamphetamine, within the United

States. The district court sentenced M s. Rollow to 180 months’ imprisonment

followed by three years of supervised release, but a panel of this court vacated

that sentence and remanded to the district court for re-sentencing in light of the

Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). See

United States v. Rollow, 146 F. App’x 290, 294-95 (10th Cir. 2005). On remand,

the district court reduced M s. Rollow’s sentence to 160 months’ imprisonment

followed by three years of supervised release. She now appeals her sentence a

second time. W e affirm the district court’s revised sentence.

I. Background

The district court’s original sentence was based in part on the pre-sentence

investigation report (PSR). The PSR established that M s. Rollow conspired to

distribute 3,438 kilograms of pseudoephedrine, a quantity that, under the United

States Sentencing Guidelines (U SSG), carried a base offense level of 30. See

U SSG § 2D 1.11 (2000). To the base offense level, the district court added tw o

levels under USSG § 3C1.1 after finding that M s. Rollow obstructed justice by

lying under oath. The court then added another two levels under USSG

§ 3B1.1(c) because it found that M s. Rollow assumed a leadership role in the

conspiracy. Accounting for M s. Rollow’s Criminal History Category of I, the

district court determined that her sentencing range was 151 to 188 months. The

court accordingly sentenced M s. Rollow to 180 months in prison.

-2- W hile M s. Rollow’s appeal of her sentence was pending, the Supreme

Court issued its decision in Booker. Booker substantively held that “[a]ny fact

(other than a prior conviction) which is necessary to support a sentence exceeding

the maximum authorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved to a jury beyond a reasonable

doubt.” 543 U.S. at 244. The Court went on to craft a remedy for the federal

sentencing guidelines by severing the provisions of the guidelines that made them

mandatory, thereby making the guidelines merely advisory. See id. at 245.

Applying Booker to M s. Rollow’s appeal, a panel of this court determined that her

sentence was unconstitutional because it was based on findings neither admitted

by her nor proven to a jury beyond a reasonable doubt. Rollow, 146 F. App’x at

294-95. Thus, the panel remanded the case “with direction that she be

re-sentenced in accord with Booker-Fanfan.” Id. at 295.

On remand, the district court construed the scope of the remand order as

applying only to the two sentence enhancements. After a hearing, the court

consulted the sentencing guidelines as advisory and, finding ample evidence to

sustain the two findings that M s. Rollow obstructed justice and assumed a

leadership role in the conspiracy, determined that the appropriate sentencing

range remained 151 to 188 months. The court concluded, however, that a

sentence at the low er end of the range w as more reasonable, and therefore

reduced M s. Rollow’s sentence to 160 months’ imprisonment.

-3- Now appearing before this court a second time, M s. Rollow contends the

district court misconstrued the scope of the remand order. Focusing on the last

phrase of the panel’s mandate, M s. Rollow argues that the language directing

“that she be re-sentenced in accord with Booker-Fanfan,” id., required the district

court to reconsider the propriety of her entire sentence rather than the two

sentence enhancements exclusively. She then goes a step further and challenges

both her base offense level as well as the sentence enhancements. She contends

her base offense level is unconstitutional because it was based on a drug quantity

that was not found by the jury; she challenges the sentence enhancements by

arguing the district court was without authority to retroactively apply the

sentencing guidelines to her case in an advisory fashion. Therefore, invoking

Booker’s substantive rule while attempting to avoid its remedial holding,

M s. Rollow concludes that her proper sentencing range is 10 to 16 months.

II. Discussion

A. Scope of Remand

W e first address M s. Rollow’s contention that the district court improperly

limited the scope of the remand order. Her argument is simply that the mandate

issued by this court vacated her entire sentence and required the district court to

completely reevaluate her sentence in light of Booker. Because M s. Rollow

preserved in the district court the allegations of error she argues on appeal, we

apply harmless error analysis to ensure that any error did not affect her

-4- substantial rights. See United States v. M arshall, 432 F.3d 1157, 1160 (10th Cir.

2005); Fed. R. Crim. P. 52(a).

Our analysis here is governed by the mandate rule, which is a

“discretion-guiding rule” that “generally requires trial court conformity with the

articulated appellate remand.” United States v. M oore, 83 F.3d 1231, 1234

(10th Cir. 1996). “Although a district court is bound to follow the mandate, and

the mandate controls all matters within its scope, a district court on remand is free

to pass upon any issue which was not expressly or impliedly disposed of on

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

(internal quotation and alteration omitted). Thus, “where the appellate court has

not specifically limited the scope of the remand, the district court generally has

discretion to expand the resentencing beyond the sentencing error causing the

reversal.” United States v. Lang, 405 F.3d 1060, 1064 (10th Cir. 2005) (quotation

omitted). To apply the mandate rule to the present case, we “examine the

mandate and then look at what the district court did.” Proctor & Gamble Co.,

317 F.3d at 1126 (internal quotation omitted).

Here, our mandate stated, “Accordingly, Rollow’s conviction is affirmed.

However, her sentence is vacated and the matter is remanded to the district court

with direction that she be re-sentenced in accord with Booker-Fanfan.” Rollow,

146 F. App’x at 295. Because this mandate lacks the sort of specificity required

to limit the district court’s resentencing authority, see United States v. Hicks,

-5- 146 F.3d 1198, 1200-01 (10th Cir. 1998), the district court had discretion to

accommodate M s. Rollow’s request and expand the scope of resentencing.

But the district court apparently believed it was constrained to reevaluate

only the two sentence enhancements. Indeed, recognizing that we had focused on

the district court’s findings that M s. Rollow obstructed justice and played a major

role in the offense, the district court interpreted our mandate as limiting the

remand to the “raising of the offense level from 30 to 34 on the basis that the

guidelines were mandatory.” Re-Sent. Tr. 12. The court thus declined to expand

the scope of resentencing beyond the two sentence enhancements, stating:

I do believe that this Court is obliged to conduct this hearing and the resentencing only on those issues, and if – if the scope should be enlarged, as [defense counsel] suggest[s], it seems to me that the Court of Appeals w ould have to be the body to instruct this Court to do so, and that’s my analysis of the – of the remand order.

....

[I]f the Court of A ppeals should clarify that and agree with [defense counsel], it will come back and – and we’ll proceed again with a broadened scope, but it is not – it is not my role, in my opinion, to attempt to broaden the issues remanded for this Court to address, and it is only for the Court of Appeals to do so.

Id. at 12-13.

As these passages demonstrate, the district court incorrectly believed it

could not reconsider M s. Rollow ’s entire sentence. This error was harmless,

however, because although M s. Rollow initially objected to the drug quantity

used to establish her base offense level, she made no offer of proof to refute that

-6- quantity. Indeed, she has failed to proffer any evidence at all disputing the

quantity of pseudoephedrine alleged in the PSR. Her inability to do so is a strong

indication that the base offense level was premised on actual conduct. See United

States v. Riccardi, 405 F.3d 852, 876 (10th Cir. 2005). M oreover, the jury heard

ample evidence that M s. Rollow was involved in the conspiracy and was

responsible for 3,438 kilograms of pseudoephedrine. The jury thereafter

convicted her for committing the offense. Under these circumstances, the district

court’s failure to reevaluate M s. Rollow’s base offense level did not affect her

substantial rights.

Additionally, we note that based on the record before us, there is no

indication that M s. R ollow raised this issue on direct appeal. The fact that we

completely omitted M s. Rollow’s base offense level from our previous analysis

strongly suggests that despite objecting to the drug quantity calculation at

sentencing, she concentrated her appellate efforts on challenging her sentence

enhancements. If this is indeed the case, it is not at all surprising that the district

court declined to reevaluate M s. Rollow’s base offense level where she did not

challenge it on appeal. In any event, we are satisfied that M s. Rollow’s

substantial rights were not violated and therefore conclude that the district court’s

error in limiting the scope of the remand was harmless.

-7- B. Discretionary Application of the Sentencing G uidelines

M s. Rollow next attempts to invoke Booker’s substantive rule, but avoid its

remedial holding. Beginning with the premise that Booker is inapplicable because

she was sentenced pre-Booker, M s. Rollow contends the district court was without

authority to retroactively apply the sentencing guidelines in an advisory fashion

so as to enhance her sentence. Yet citing Jones v. United States, 526 U.S. 227,

243 n.6 (1999), M s. Rollow clings to Booker’s substantive Sixth Amendment

protection that any fact (other than a prior conviction) that increases the

maximum penalty for a crime must be charged in an indictment, submitted to a

jury, and proved beyond a reasonable doubt. 1 Thus, reasoning that she is

protected from retroactive, discretionary application of the sentencing guidelines,

but entitled to a jury verdict on any fact that increases her sentence, M s. Rollow

concludes that her correct sentencing range is 10 to 16 months.

Initially, w e note that M s. Rollow’s position is undercut by her own

concession that Booker applies to all cases on direct appeal. See Aplt. Br. at 13

(“Booker/Fanfan applies to all cases on direct appeal.”). Nonetheless, our

1 Defense counsel cites “Jones v. Unite [sic] States, 527 U.S. 373, 388, 119 S.Ct. 1215 (1999).” See Aplt. Br. at 3, 15. This reference merges the citations of tw o different cases, Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215 (1999), and Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090 (1999). The error is complicated by the fact that throughout his brief, counsel refers to the authority only as “Jones.” See, e.g., Aplt. Br. at 16. Because the basis of M s. Rollow’s appeal concerns a sentencing issue addressed in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215 (1999), we can only assume counsel intended to invoke this authority, and not Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090 (1999).

-8- precedent has foreclosed the possibility of M s. Rollow avoiding Booker’s

remedial holding. In United States v. Rines, 419 F.3d 1104, 1106 (10th Cir.

2005), we rejected the similar contention that applying Booker’s remedial holding

to a pre-Booker offense w ould violate the Fifth A mendment’s Due Process

Clause. W e explained that this argument is “contrary to the Supreme Court’s

explicit instructions in Booker,” id., which w ere that “w e must apply today’s

holdings – both the Sixth Amendment holding and our remedial interpretation of

the Sentencing Act – to all cases on direct review,” Booker, 543 U.S. at 268.

M s. Rollow’s case was on direct review at the time Booker was decided. The

district court therefore was correct to retroactively consider and apply the

guidelines in an advisory fashion. M s. Rollow’s insistence that all

sentence-enhancing facts must be proven beyond a reasonable doubt does not alter

the analysis because post-Booker, “district courts are still required to consider

Guideline ranges, which are determined through application of the preponderance

standard, just as they were before,” United States v. M agallanez, 408 F.3d 672,

685 (10th Cir. 2005) (citation omitted). M s. Rollow’s sentence here was based on

a quantity of drugs for which she was found responsible by a jury without any

offer of proof to the contrary; her sentence w as enhanced through discretionary

judicial fact-finding by a preponderance of the evidence. M s. Rollow received all

the protections the constitution affords.

-9- III. Conclusion

The judgment of the district court is AFFIRMED.

Entered for the Court

David M . Ebel Circuit Judge

-10-