Sunday, February 22nd, 2009


United States v. Carr, No. 06-5490-cr (2d Cir. February 19, 2009) (Kearse, Sack, Kaztmann, CJJ)

Carr was convicted after a jury trial of racketeering, drug and firearms offenses. At his original sentencing, since the racketeering predicate was murder, the then-mandatory guidelines prescribed a life sentence, and that is what he received, plus five years on a § 924(c) count. On Carr’s first appeal, the court affirmed his convictions and the district court’s guidelines calculations, but ordered a Crosby remand.

On remand, the court resentenced him to forty years’ imprisonment: five years on the gun count consecutive to thirty-five on the racketeering counts. On his second appeal, Carr tried to get the circuit to revisit the district court’s guideline calculations, even though they had been affirmed on his first appeal, arguing that the law-of-the-case doctrine should not apply where the district court imposed a different sentence after a Crosby remand.

The circuit disagreed. Under the law-of-the-case doctrine, when the court of appeals has ruled on an issue and has remanded the case to the district court, the district court on remand is required to follow that ruling, unless there is an intervening change in controlling law, new evidence, or the need to prevent a manifest injustice.

After a Crosby remand, if the appellate court has already adjudicated the challenges to the guidelines calculations, the law-of-the-case doctrine still applies. Even post-Booker sentencings require the district court to calculate the guidelines. And, since interpretations of the guidelines are question of law, if they have been addressed by the circuit prior to the remand, only “compelling circumstances” such as those identified above warrant an exception to the law-of-the-case doctrine.

Thus, the district court cannot, on a Crosby remand, revisit guideline issues that were adjudicated on the prior appeal, and the parties cannot renew their previously adjudicated challenges on a subsequent appeal, even if the district court has imposed a new sentenced on the remand. Nor does Kimbrough represent the type of intervening change in the law that might excuse application of the law-of-the-case doctrine. Under Kimbrough , district courts are free to disagree with the guidelines on policy grounds, but there is nothing in Kimbrough that permits district courts to disregard the appellate court’s jurisprudence interpreting the guidelines.

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