Remand Order for Re-Sentencing Did Not Support De Novo Re-Sentencing

UNITED STATES V. LEE, NO. 12-2020-cr (2D CIR. NOV. 26, 2013) (KEARSE, JACOBS, AND PARKER) (SUMMARY ORDER), AVAILABLE HERE

This defendant appealed his 235-month prison term for drug related offenses, which the district court imposed on remand from an earlier appeal.  The Court vacated an earlier judgment and remanded for re-sentencing due to the erroneous denial of a third point for acceptance of responsibility, which the defendant received.  In his second appeal, the defendant asserted procedural error based upon the district court’s refusal to hold a new Fatico hearing on marijuana quantity before re-sentencing and its subsequent imposition of more than one year’s custody despite a jurisdictionally defective indictment, which failed to identify the substance at issue.  The Court rejected both claims.

The Court held that its remand order required only a limited, not de novo, re-sentencing hearing.  The mandate did not “unequivocally” call for de novo re-sentencing and the “spirit” of the order did not clearly convey such an intent.  It vacated only the sentence and not the underlying conviction, identified a specific error to be corrected and rejected other arguments raised on appeal, which would not have been done if the Court intended for de novo sentencing.  Due to the limited nature of the re-sentencing, the law of the case doctrine foreclosed re-litigation of waived or already decided issues unless either of two exceptions applied.  The defendant could not show that the marijuana quantity issue, which he deliberately bypassed at the first sentencing and Fatico hearing, became relevant to the re-sentencing.

The indictment also was not defective and the sentence was procedurally reasonable.  The omission alleged by the defendant did not create any jurisdictional defect given the federal offense charged and his guilty plea waived any non-jurisdictional defects.  Regardless, the indictment identified the controlled substance involved and the defendant admitted at the plea allocation that his conduct involved cocaine.