UNITED STATES v. SANDFORD III (2021)

SUMMARY ORDER

Defendant-Appellant James Edward Sandford III (“Sandford”) appeals from the district court's order of August 10, 2020, declining to conduct a resentencing proceeding. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

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An appellate court “may remand [a] cause and ․ require such further proceedings to be had as may be just under the circumstances.” 28 U.S.C. § 2106; see also United States v. Ojeda, 946 F.3d 622, 629 (2d Cir. 2020) (“As a general matter, appellate courts have broad discretion to mandate further proceedings on remand.”). In the sentencing context, an appellate court's discretion “extends to the scope of issues to be considered by the resentencing court.” Ojeda, 946 F.3d at 629.

If a case is remanded for a limited (rather than de novo) resentencing, the “so-called ‘mandate rule’ ” applies, which “forecloses relitigation of all issues previously waived by the defendant or decided by the appellate court.” United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002). The mandate rule “prevents relitigation in the district court not only of matters expressly decided by the appellate court, but also precludes re-litigation of issues impliedly resolved by the appellate court's mandate.” Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry. Co., 762 F.3d 165, 175 (2d Cir. 2014) (emphasis added) (internal quotation marks omitted). “Furthermore, where the mandate limits the issues open for consideration on remand, the district court ordinarily may not deviate from the specific dictates or spirit of the mandate by considering additional issues on remand.” Id.

In general, a district court is required to resentence a defendant “in light of the circumstances as they stood at the time of his resentencing.” Werber v. United States, 149 F.3d 172, 178 (2d Cir. 1998); see also United States v. Bryson, 229 F.3d 425, 426 (2d Cir. 2000) (“[A] court's duty is always to sentence the defendant as he stands before the court on the day of sentencing.”). In Pepper v. United States, the Supreme Court held that “a district court at resentencing may consider evidence of the defendant's postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the ․ Federal Sentencing Guidelines range.” 562 U.S. 476, 481, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) (emphasis added). Our Court has since clarified, however, that “Pepper held that where a Court of Appeals remands for a plenary resentencing, the district court must be allowed to consider the facts as they are at the time of imposing the new sentence.” Shabazz v. United States, 923 F.3d 82, 84 (2d Cir. 2019) (emphasis added). But “Pepper did not preclude remands that would reopen only limited aspects of the previously imposed sentence․” Id. (emphasis added). Indeed, “Pepper expressly clarified that it did not ‘mean to preclude courts of appeals from issuing [limited] remand orders, in appropriate cases, that may render evidence of postsentencing rehabilitation irrelevant in light of the narrow purposes of the remand proceeding.’ ” Id. (quoting Pepper, 562 U.S. at 505 n.17, 131 S.Ct. 1229).

Sandford's argument that Sandford I required the district court to conduct a resentencing fails. The Sandford I decision cannot reasonably be read to support Sandford's position. The decretal language clearly instructs the district court to conduct a resentencing only if Sandford's corrected criminal history score would result in a different sentence. And in making that narrow determination, the district court was not required to consider any evidence of Sandford's postsentencing rehabilitation.

The five additional arguments that Sandford raises in his pro se supplemental brief fail as well. Sandford's first argument, that the district court erred in not considering his postsentencing rehabilitation, fails for the reasons described above. His second and third arguments — that his sentence was substantively unreasonable and that the district court made additional errors in calculating his criminal history score — were rejected in Sandford I and are therefore barred by the mandate rule. Sompo Japan, 762 F.3d at 175. Sandford's fourth and fifth arguments, while not barred by the mandate rule, are likewise meritless. Sandford argues that this Court failed to consider his strongest arguments in his initial appeal and ignored his request to stay the mandate so that he could request an extension of time to petition for a rehearing en banc. But an appeal of a district court's resentencing order is not the proper channel for the review of a prior decision of this Court.

We have considered Sandford's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.