Friday, January 19, 2007

Remand for Resentencing "In Accordance with Booker" Permitted Reconsideration of Earlier Relevant Conduct Determination

United States v. Elizondo, No. 06-10131 (5th Cir. Jan. 15, 2007) (Higginbotham, Smith, DeMoss)

Here's one for fans of the law of the case doctrine and the mandate rule, in the context of a Booker remand. And as one of my colleauges pointed out, the case also reminds us that a jury verdict on a broad indictment does not necessarily require a district court to make equally broad findings as to relevant conduct. Because the two factual inquiries are distinct, it's possible for a defendant's relevant conduct liability to be narrower than his liability for an offense (depending on the foreseeability of co-conpirators' acts, for example).

A jury found Elizondo and a co-defendant guilty of conspiring to commit mail fraud for "perpetrat[ing] a scheme to defraud undocumented aliens by pretending to be [INS agents] and by purporting to help the aliens with fake immigration forms." United States v. Garza, 429 F.3d 165, 168 (5th Cir. 2005) (per curiam). The district court sentenced Elizondo to 37 months' imprisonment, and ordered restitution of $172,176, for which Elizondo was jointly and severally liable. Id.

In his first appeal, Elizondo raised a sufficiency challenge to his conviction, and also argued that both his prison sentence and the restitution order violated Blakely because they were based on judicially-determined facts. The court of appeals rejected Elizondo's sufficiency challenge, as well as his challenge to the restitution order (holding "that judicial fact-finding supporting restitution orders does not violate the Sixth Amendment"). Id. at 168-70. However, because the district court erred by imposing a sentence under a mandatory Guidelines scheme, and because the Government could not show that the error was harmless, the court vacated Elizondo's sentence and remanded "for resentencing in accordance with Booker." Id. at 170-71, 174.

At resentencing, Elizondo argued that he wasn't responsible for the full range of relevant conduct that the district court had found the first time around, meaning that he shouldn't be responsible for the full restitution amount and that his guideline offense level should have been lower. The district court apparently agreed, but nevertheless imposed the same sentence as it had the first time around. The court refused to reconsider the relevant conduct determination or the restitution amount because it considered itself bound by the court of appeals' determination of the facts in its resolution of the sufficiency challenge.

Elizondo appealed again, arguing that the district court was mistaken in its belief that the disposition of his sufficiency challenge precluded reconsideration of his relevant conduct on remand.

The court of appeals agreed that the district court erred. It pointed out that a determination that the facts were sufficient to establish an offense does not bind a district court at resentencing, because "sentencing requires evaluating facts beyond the facts required to establish an offense." Slip op. at 3-4. The court also rejected the Government's argument that the mandate rule precluded reconsideration of the earlier relevant conduct determination:
The mandate instructed the district court to resentence “in accordance with Booker.” A consideration of Elizondo’s relevant conduct fell within this mandate, because sentencing under the guidelines requires a consideration of the defendant's relevant conduct.

Slip op. at 4. However, the mandate did preclude the district court from revisiting the restitution order because the remand for resentencing "in accordance with Booker [did] not implicate the statute under which Elizondo was ordered to pay restitution - the Mandatory Victims Restitution Act." Id. Accordingly, the court again affirmed the restitution order and vacated the sentence and remanded for resentencing.


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