U.S. v. Rodriguez-Velarde, (10th Cir. 1998)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAPHAEL RODRIGUEZ-VELARDE,

Defendant-Appellant.

No. 98-2059

(D.C. No. CR-96-164 MV)

(D. N.M.)

ORDER AND JUDGMENT
href="#N_*_" name="txt*">(*)

Before BALDOCK, EBEL and

MURPHY, Circuit Judges.

On August 8, 1996, Defendant-Appellant Rodriguez-Velarde pleaded

guilty to one count of conspiracy to possess with intent to distribute more than

100 kilograms of marijuana, in violation of 21 U.S.C. § 846, and aiding and

abetting, in violation of 18 U.S.C. § 2. At sentencing, based on the recent death

of his wife and the resultant extraordinary family circumstances, Rodriguez-Velarde moved for a

downward departure from the 97 to 121 month sentencing

range calculated under the Sentencing Guidelines. The district court granted his

motion and sentenced Rodriguez-Velarde to sixty months, the statutory minimum

sentence for his offense. The government appealed. Rodriguez-Velarde did not

file a direct appeal or a cross-appeal to challenge any aspect of his sentencing.

This court found that Rodriguez-Velarde "failed to demonstrate that his

family ties and responsibilities are extraordinary," and therefore held that the

district court abused its discretion in granting a downward departure. United

States v. Rodriguez-Velarde, 127 F.3d 966, 968 (10th Cir. 1997). We vacated

the sentence and remanded "for resentencing within the Guideline range of 97 to

121 months." Id.

In accord with our instructions, the district court resentenced Rodriguez-Velarde to a

97-month prison term, the low end of the Guideline range. On

appeal, Rodriguez-Velarde now challenges a three-level enhancement -- based

on his role as a manager or supervisor in the drug conspiracy -- used to calculate

the original Guideline range. Rodriguez-Velarde failed to raise this claim in any

of the prior proceedings before this court or the district court.
name="txt1a">(1) Further, the

district court was bound by our remand to sentence Rodriguez-Velarde to the

range we specified. Accordingly, we affirm.

The law of the case doctrine instructs that "findings made at one point

during litigation become the law of the case for subsequent stages of that same

litigation." See United States v. Webb, 98 F.3d 585, 586 (10th Cir. 1996),

cert.

denied, 117 S.Ct. 1097 (1997). The mandate rule compliments the doctrine of

law of the case, requiring district courts to conform with an "articulated appellate

remand." Id. However, the mandate rule "'is a discretion-guiding rule subject to

exception in the interests of justice.'" Id. (quoting United States v. Moore, 83

F.3d 1231, 1234 (10th Cir. 1996)). According to the rule, a district court may

depart from the mandate of an appellate court only under exceptional

circumstances summarized as: "(1) a dramatic change in controlling legal

authority; (2) significant new evidence that was not earlier obtainable through

due diligence but has since come to light; or (3) that blatant error from the prior

sentencing decision would result in serious injustice if uncorrected." Moore, 83

F.3d at 1234.

Rodriguez-Velarde presents no exceptional circumstances that would

justify district court departure from our earlier remand instructions. First, there

has been no change in controlling legal authority since Rodriguez-Velarde was

first sentenced and he makes no claim of change in law. Second, Rodriguez-Velarde presents no

new evidence in support of his claim. He simply claims that

facts alleged in the presentence report were insufficient to support a finding that

he was a manager of the drug conspiracy.

Finally, we see no error or risk of serious injustice in sentencing

Rodriguez-Velarde on the basis of the three-point enhancement. Rodriguez-Velarde essentially

argues that the district court erred in applying the three-point

enhancement for his role as a "manager or supervisor" of a criminal activity

involving five or more participants as required by the Sentencing Guidelines.

See U.S.S.G. § 3B1.1. We disagree.

At resentencing, the district judge, based on her assessment of witnesses'

credibility, identified a number of facts establishing that Rodriguez-Velarde was

a manager or supervisor in the drug conspiracy. First, the court found that

Rodriguez-Velarde directed Ms. Uebel "to go and pick up the drugs." Second,

the court found that he supervised couriers in the conspiracy. Third, the court

found that Rodriguez-Velarde was instrumental in renting the U-Haul truck that

was used to transport drugs. Finally, the court concluded that the organization in

which Rodriguez-Velarde was a manager consisted of more than five participants,

as is required for a three-point enhancement under U.S.S.G. § 3B1.1.

On these facts, we cannot conclude that the district court made a blatant

error that could result in serious injustice if uncorrected. Thus, no exceptional

circumstances exist to justify departure from our mandate in United States v.

Rodriguez-Velarde, 127 F.3d at 969. That mandate directed the district court to

sentence Rodriguez-Velarde within the 97 to 121 month range. At resentencing,

he received the lowest permissible sentence under that range. We affirm.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*.After examining the briefs and appellate

record, this panel has determined

unanimously to grant the parties' request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The

case is

therefore ordered submitted without oral argument. This Order and Judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. The court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3.

1.Rodriguez-Velarde had ample opportunity

to raise his objection to the

three-level enhancement for his role as a manager or supervisor of the criminal

conspiracy to which he admitted being a party. Based on an agreement with the

prosecutor, Rodriguez-Velarde agreed not to object to the facts in the presentence

report relating to his role as a manager or supervisor in the conspiracy. See

Presentence Report ¶¶ 12, 14-16, at 5-6. Pursuant to the same agreement,

Rodriguez-Velarde failed to object to the inclusion in the Presentence Report of a

three-point enhancement for his role in the offense. See id. ¶ 27, at 7.

Rodriguez-Velarde also failed to raise the issue of his role enhancement to this

court in our earlier consideration of a government sentencing appeal.

Moreover, after raising and discussing the role enhancement issue at the

resentencing hearing, counsel for Defendant-Appellant, after conferring with

Rodriguez-Velarde, stated "we are prepared to stand and be sentenced today to

the 97 to 121 months required by the [Tenth Circuit] mandate." (United States'

Appendix, at 18.) The sentencing judge responded: "All right. Which means

that you are not then contesting those issues [the role enhancement] that we've

just discussed?" (Id.) To which Rodriguez-Velarde's attorney responded:

"That's correct, Your Honor."

Thus, it appears that Rodriguez-Velarde abandoned his claim in the district

court regarding his role enhancement, and accordingly the district court did not

rule on it. This court will not consider on appeal claims abandoned in the district

court. See O'Connor v. City & County of Denver, 894 F.2d 1210, 1214

(10th

Cir. 1990); see also United States v. Young, 952 F.2d 1252, 1259 (10th Cir.

1991) (appellate court has no jurisdiction to decide issue which proponent

abandoned and district court did not rule on).

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