United States v. Vergil Vladimir George

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 15, 2018
• Docket: 18-10171
• Status: Unpublished

Opinion

Case: 18-10171 Date Filed: 10/15/2018 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-10171 Non-Argument Calendar ________________________

D.C. Docket No. 1:15-cr-20821-JEM-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

VERGIL VLADIMIR GEORGE,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(October 15, 2018)

Before MARTIN, JILL PRYOR and HULL, Circuit Judges.

PER CURIAM: Case: 18-10171 Date Filed: 10/15/2018 Page: 2 of 12

In this second direct appeal, Vergil George appeals his sentences that were

imposed after his first appeal. In that first appeal, this Court affirmed, inter alia,

George’s advisory guidelines calculations but remanded the case so that George

could allocute and be resentenced. After careful review, and for the reasons

outlined below, we vacate George’s sentence and remand for resentencing

consistent with the mandate in the first appeal and with this opinion in this second

appeal.

I. BACKGROUND

A. Conviction and Sentence

In 2016, a jury convicted George on six felony counts, including: (1)

conspiracy to possess with intent to distribute cocaine and marijuana, in violation

of 21 U.S.C. § 846; (2) conspiracy to commit Hobbs Act robbery, in violation of

18 U.S.C. § 1951(a); (3) being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1); (4) possession of unauthorized access devices, in violation of

18 U.S.C. §§ 1029(a)(3) and 2; and (5) two counts of aggravated identity theft, in

violation of 18 U.S.C. §§ 1028A(a)(1) and 2.

At sentencing, George objected to the presentence investigation report’s

(“PSR”) calculation of his total offense level, including several offense level

enhancements. The district court overruled George’s objections and determined

that George’s advisory guidelines range was 235 to 293 months’ imprisonment.

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The district court imposed 235-month sentences on his drug and robbery

conspiracy convictions and 120-month sentences on his firearm and access device

convictions, all to run concurrently, and 24-month sentences on his identity theft

convictions, to run concurrently to each other but consecutively to the other counts,

for a total term of 259 months’ imprisonment. Although hearing argument from

George’s trial counsel, the district court did not give George personally an

opportunity to address the court before imposing those sentences.

B. First Appeal and Remand

George appealed, challenging several offense-level enhancements and also

the district court’s failure to permit him to allocute. This Court expressly affirmed

the district court’s offense level and other guidelines calculations. See United

States v. George, 872 F.3d 1197, 1199 (11th Cir. 2017) (“George I”).

However, this Court concluded that the district court erred when it did not

allow George to allocute before pronouncing his sentence, as required by Federal

Rule of Criminal Procedure 32(i)(4)(A)(ii). Id. at 1199, 1206-09. As a result, this

Court vacated George’s sentence “and remanded to the district court for

resentencing,” with these limiting instructions drawn from United States v. Doyle,

857 F.3d 1115 (11th Cir. 2017), as follows:

At this proceeding, George ‘is entitled to an opportunity to allocute and have the court resentence him after he says what he wishes to say to the judge.’ Doyle, 857 F.3d at 1121. But he is not entitled to an entirely new resentencing—he may not reassert or reargue any of his 3 Case: 18-10171 Date Filed: 10/15/2018 Page: 4 of 12

objections to the PSR, file new objections to the PSR, or file a new sentencing memorandum. Id. As in Doyle, our aim is to ‘return [George] to the position he was in on the day of his original sentence hearing.’ Id.

George I, 872 F.3d at 1209 (alterations in original). Thus, in the first appeal, this

Court made clear that George was not entitled to “an entirely new resentencing”

and that George may not reargue his objections to the PSR or file new objections

or a sentencing memorandum.

C. Resentencing

On remand, the district court held a resentencing hearing. The district court

began by saying, “[My] understanding of the mandate issued by the Court of

Appeals [is] that I am to listen to whatever Mr. George has to say, and I’m happy

to do so.” George’s defense counsel added, “And, your honor, my understanding

is that because the Circuit said we’re not to file any PSI objections or sentencing

memoranda, that there’s nothing for me to say.” The district court responded,

“Correct. I mean, you’re here to protect his rights, I expect. But my understanding

is that it’s just a question of his allocution.”

George then spoke to the district court, maintaining his innocence and

arguing that there were “several significant errors” during his trial. George argued

what he believed was misconduct by the prosecutor and lead agent. George also

stated that his trial counsel was ineffective in representing him. George asked the

district court to consider his family’s suffering, pointing out that he had two small

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children and elderly parents who were not in good health. George stated that he

had found Christ while in prison and that he was “trying every day to be a better

person.” George admitted that he had made some bad decisions and had been lost,

and thanked the district court for saving his life and his soul. George asked the

district court to forgive him for the things he had done and to show mercy and not

to reimpose the same sentence.

The district court thanked George and asked the parties if they had anything

further to say. When neither did, the district court stated that it had considered all

of the parties’ statements, the PSR, and the 18 U.S.C. § 3553(a) factors. The

district court then imposed the same sentences of 235 months on George’s drug

and robbery conspiracy convictions and 120 months on his firearm and access

device convictions, all to run concurrently, and 24 months on his identity theft

convictions, to run concurrently to each other but consecutively to the other counts.

Afterwards, George objected “on grounds of procedural and substantive

reasonableness” and “restate[d] his previously made objections to the PSI and the

Court’s prior sentencing rulings.” George filed this appeal.

II. DISCUSSION

A. The Mandate Rule

The mandate rule is a specific application of the law-of-the-case doctrine,

which provides that subsequent courts—both the district court and the appellate

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court—are bound by any findings of fact or conclusions of law made in the prior

appeal in the same case. United States v. Amedeo, 487 F.3d 823, 829-30 (11th Cir.

2007). Under the mandate rule, the district court, when acting under an appellate

court’s mandate, “cannot vary it, or examine it for any other purpose than

execution; or give any other or further relief; or review it, even for apparent error,

upon a matter decided on appeal; or intermeddle with it, further than to settle so

much as has been remanded.” Id. at 830 (quotation marks omitted). The district

court “must implement both the letter and spirit of the mandate, taking into

consideration [the appellate court’s] opinion and the circumstances it embraces.”

United States v. Mesa, 247 F.3d 1165, 1170 (11th Cir. 2001).1

B. Limited Remands for Allocation and Resentencing

In vacating a sentence and remanding for resentencing, this Court may enter

a general vacatur of the sentence, which allows for resentencing de novo. United

States v. Martinez, 606 F.3d 1303, 1304 (11th Cir. 2010). Alternatively, this Court

may issue a limited mandate, which remands for a limited purpose at the

resentencing. Id.; see also United States v. Davis, 329 F.3d 1250, 1252 (11th Cir.

2003). When this Court vacates the sentence, but issues a limited mandate with

particular remand instructions, the district court at resentencing is restricted to the

1 Whether a district court complied with this Court’s mandate on remand is reviewed de novo. Amedeo, 487 F.3d at 829. We review for an abuse of discretion the district court’s exercise of the limited discretion left to it by our mandate. See Pelletier v. Zweifel, 987 F.3d 716, 718 (11th Cir. 1993). 6 Case: 18-10171 Date Filed: 10/15/2018 Page: 7 of 12

issues outlined in the mandate. Davis, 329 F.3d at 1252. Unlike a general vacatur,

a limited remand does not “nullify all prior proceedings.” Id. (quotation marks

omitted).

Here, the district court imposed a sentence without first allowing George to

speak in mitigation of his sentence, and thus this Court vacated the sentence and

remanded so that the district court could comply with Rule 32 and allow the

defendant to allocute. See George I, 872 F.3d at 1206-09 (relying on Doyle, 857

F.3d at 1118). In this type of limited remand, a defendant “is not entitled to an

entirely new sentencing proceeding” or “to reassert or reargue” prior objections or

“take steps that his former counsel could have, but did not, take before and during

his original sentence hearing.” Doyle, 857 F.3d at 1121. Instead, the defendant is

returned to “the position he was in on the day of his original sentence hearing . . .,

with the same record that was before the sentencing court at that time” and is given

the opportunity to allocute that he was originally denied. Id.

This Court has long-standing precedent employing this type of limited

remand and instructing that the resentencing hearing on remand resumes at the

point of allocution. See, e.g., Doyle, 857 F.3d at 1121; United States v. Perez, 661

F.3d 568, 586 (11th Cir. 2011); United States v. Rogers, 848 F.2d 166, 169 (11th

Cir. 1988). That is to say that, after the defendant’s allocution, counsel for the

parties may make arguments to the district court for the appropriate sentence in

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light of the 18 U.S.C. § 3553(a) factors and the record, including any information

the defendant has provided during his allocation, and the district court must

consider § 3553(a) factors and the record, including the defendant’s allocution, in

selecting the sentence imposed. As we recognized in George I, the information a

defendant provides during his allocution may indeed have an effect on his

sentence, and the allocution should not be “an empty formality.” George I, 872

F.3d at 1209; see also United States v. Tamayo, 80 F.3d 1514, 1518 (11th Cir.

1996) (“The purpose underlying the right of allocution is to permit a convicted

defendant an opportunity to plead personally to the court for leniency in his

sentence by stating mitigating factors and to have that plea considered by the court

in determining the appropriate sentence.”).

C. George’s Resentencing

In reviewing the transcript of George’s resentencing, it is clear that the

parties and the district court labored under a mutual misunderstanding as to the

scope of this Court’s limited remand. Our limiting instructions to the district court

were to allow George to allocute and then to resentence him. While the limiting

instructions precluded George from “reassert[ing] or reargu[ing] any of his

objections to the PSR, . . . or fil[ing] a new sentence memorandum,” they did not

preclude either George or the government from arguing for a particular sentence, in

light of the aggravating and mitigating sentencing factors. See George I, 872 F.3d

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at 1209. Such arguments by both counsel naturally occur toward the end of the

sentencing hearing, after the record (including the defendant’s allocution) is

complete, but before the district court imposes the sentence. See Fed. R. Crim. P.

32(i)(4)(A)(i)-(iii). Because both George’s counsel and the district court

mistakenly believed arguments by counsel for a particular sentence were outside

the scope of the remand, we must vacate George’s sentence and remand for

another resentencing consistent with the Court’s limited mandate in George I and

this opinion.

George contends that this Court’s limited mandate in George I was legal

error and that he was entitled to a de novo resentencing. As the government

accurately points out, George failed to raise this issue in his last appeal, either in a

petition for rehearing before this Court or in a petition for certiorari to the U.S.

Supreme Court.

In any event, under our binding precedent, George was not then, and is not

now, entitled to a de novo resentencing. See Doyle, 857 F.3d at 1121; Perez, 661

F.3d at 586; Davis, 329 F.3d at 1252; Rogers, 848 F.2d at 169. Nor is George

allowed to reargue issues, such as his guidelines calculations, that were already

decided and affirmed in the first appeal or to raise new issues that could have been

but were not raised in the first appeal, all of which are now law of the case. See

Amedeo, 487 F.3d at 829-30; see also United States v. Escobar-Urrego, 110 F.3d

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1556, 1560-61 (11th Cir. 1997) (explaining that district court rulings that have not

been challenged in a first appeal will not be disturbed in a subsequent appeal).

Furthermore, George has not demonstrated that this Court’s George I

decision “was clearly erroneous and would work manifest injustice.” See Amedeo,

487 F.3d at 830 (stating that one of the exceptions to the mandate rule is that “the

prior [appellate] decision was clearly erroneous and would work a manifest

injustice” (quotation marks omitted)). There is no merit to George’s argument that

this Court’s precedent in Doyle, Perez, and Rogers, which was followed in George

I, is inconsistent with Green v. United States, 365 U.S. 301, 81 S. Ct. 653 (1961).

In Green, the Supreme Court held that a defendant has a right to allocute before his

sentence is imposed, not that a defendant is entitled to an entirely new resentencing

hearing on remand if he has been denied his allocution right. See Green, 365 U.S.

at 305, 81 S. Ct. at 655 (plurality opinion). We, like the district court on remand,

remain bound by George I as the law of the case. See Amedeo, 487 F.3d at 829-

30. We also are bound by our prior precedent in Doyle, Perez, and Rogers. See

United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (explaining

that this Court is “bound to follow a prior binding precedent unless and until it is

overruled by this court en banc or by the Supreme Court.” (quotation marks

omitted)).

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In sum, on remand the district court should again, consistent with

Rule 32(i)(4)(A)(ii), address George personally and permit him to allocute if he so

wishes. The district court should then resume the sentencing proceedings from that

point, including allowing counsel for the parties to argue for a particular sentence

in light of the § 3553(a) factors and the record, including any further allocation by

George. Only after considering the record, including George’s allocution, the

§ 3553(a) factors, and the parties’ arguments should the district court select and

pronounce the sentence.

We do not suggest, however, that on remand the district court must impose

any particular sentence or a lower sentence, or that the district court is not free to

impose the same sentence if it determines, after allocution and counsels’ argument,

that sentence remains the appropriate sentence. Further, as this is a limited remand

to permit George to be resentenced after allocution, George may not reargue issues

already or necessarily decided during the first sentencing that either have been

affirmed on appeal or could have been but were not raised before now. See Doyle,

857 F.3d at 1121; Davis, 329 F.3d at 1252. This restriction would include

objections to George’s PSR or the district court’s advisory guidelines calculations.

As with our last remand, we mean to return George to the point in his original

sentencing proceedings—and with the same record that existed at that moment—

when the district court should have addressed George personally and asked him

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whether he wished to speak and to have the sentencing proceedings resume from

that point as they would ordinarily be conducted.2

VACATED AND REMANDED.

2 George’s request that a new district judge be assigned to his case on remand is denied. 12