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Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant, with whom A.J. Kramer, Federal
Public Defender, was on the briefs.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for appellee, with whom Eric H. Holder, Jr., U.S.
Attorney, John R. Fisher, Elizabeth Trosman, and Nancy R.
Page, Assistant U.S. Attorneys, were on the brief.
Before: Ginsburg, Henderson, and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge : In this appeal we are asked to
decide whether a criminal defendant whose case we have
remanded to the district court for resentencing may there
raise for the first time a challenge to his sentence that is
unrelated to the reason for the remand. We hold that he
may not do so unless his newly-raised objection to the sen-
tence is based upon an error so plain that the district court or
the court of appeals should have raised it for him.
Michael Whren was convicted on four counts: One, posses-
sion with the intent to distribute 50 grams or more of cocaine
base (the distribution count); Two, possession with the intent
to distribute 50 grams or more of cocaine base within 1,000
feet of a school (the schoolyard count); Three, possession of
marijuana; and Four, possession of phencyclidine, a/k/a PCP.
Pursuant to the United States Sentencing Guidelines, Whren
was sentenced to serve 168 months in prison and to pay a
special assessment of $150.
The base offense level for the distribution count, deter-
mined by the quantity of drugs involved, was 32 which,
considering Whren's Category II criminal history, produced a
sentencing range of 135-168 months. The base offense level
for the schoolyard count was 34, being the same 32 for the
quantity of drugs involved plus a two-level enhancement
because the drugs "directly involved a protected location."
U.S.S.G. ¶ 2D1.2(a)(1). An offense level of 34 for an offender
with a criminal history in Category II produces a sentencing
range of 168-210 months. Whren did not dispute the district
court's determination that 34 was the correct base offense
level for his violation of the schoolyard statute. The district
court then sentenced Whren to the maximum of 168 months
on the distribution count and to the minimum of 168 months
on the schoolyard count, the sentences to be served concur-
rently.
Whren appealed to this court arguing, among other things,
that the distribution count should be vacated because it is a
lesser included offense of the schoolyard count. Whren ac-
knowledged that, because he did not appeal the sentence for
the schoolyard conviction, vacatur of the distribution count
would have no effect upon his overall sentence other than to
reduce his special assessment by $50.
This court affirmed Whren's convictions on Counts Two,
Three, and Four, as did the Supreme Court; 116 S. Ct. 1769
(1996). We reversed Whren's conviction on Count One, how-
ever, holding that possession with the intent to distribute is a
lesser-included offense of possession with the intent to dis-
tribute within 1,000 feet of a school. "Consequently ... we
remand[ed the case] to the District Court for entry of an
amended judgment and resentencing on Counts One and
Two." United States v. Whren, 53 F.3d 371, 376 (1995). We
did not say why vacatur of the distribution count necessitated
a remand for resentencing upon the schoolyard count, but
Whren concedes that the remand was consistent with this
court's general rule that when "we cannot ascertain whether
the District Court's sentence on a valid conviction was influ-
enced by a conviction on a separate count that is later
overturned on appeal, the proper course is to remand so that
the District Court may reconsider the sentence imposed."
United States v. Lyons, 706 F.2d 321, 335 n.25 (1983).
At his resentencing hearing Whren sought to raise four
issues that he had not raised either at the original sentencing
or upon appeal. None of the four issues was in any way
related to this court's vacatur of the distribution count.
Whren argued first that the district court should grant a
downward departure pursuant to § 5k2.0 of the Sentencing
Guidelines, in view of the Special Report to the Congress:
Cocaine and Federal Sentencing Policy (February 1995), in
which the Sentencing Commission asserts that there is no
justification for the large disparity between the prescribed
sentence for a crack cocaine offense and that for a similar
offense involving powder cocaine. Whren also urged the
court to grant a downward departure in light of his education-
receive the two-level sentence enhancement normally meted
out for a conviction under the schoolyard statute, see U.S.S.G.
§ 2D1.2(a)(1), because his presence near a school was fortui-
tous. (He was driving by when he was stopped and arrested.)
Finally, Whren argued that if the district court did not have
discretion to give him a pass on the schoolyard enhancement,
then it should grant him an offsetting downward departure
because his offense did not run afoul of the purpose of the
schoolyard statute.
The district court ruled that it lacks authority to consider
Whren's request for a downward departure based upon the
Special Report of the Sentencing Commission. Whren does
not challenge that ruling. The district court received testi-
mony about Whren's educational progress in prison but ulti-
mately concluded that such post-sentencing conduct is not a
proper ground for a departure either. Whren does challenge
this ruling but his challenge is both oblique_not to say
cryptic_and belated, coming as it does in a footnote to his
reply brief; absent extraordinary circumstances (not present
here) we do not entertain an argument raised for the first
time in a reply brief, Forman v. Korean Air Lines Co., Ltd.,
84 F.3d 446, 448 (D.C. Cir. 1996), or for that matter, in a
footnote. Washington Legal Clinic for the Homeless v.
Barry, 107 F.3d 32, 39 (D.C. Cir. 1997). Finally, the district
court expressly declined to consider Whren's arguments
against penalizing him for proximity to a school because it
concluded that our mandate implicitly prohibited it from
doing so. It is that decision only that we now review.
Whren argues that when the court of appeals remands a
case for resentencing, the district court is presumptively
authorized to sentence the defendant de novo ; only some
limitation in the order of the appellate court_and he sees
none in this case_could limit the district court's role after the
remand. The Government, on the other hand, argues that
the mandate in this case implicitly precluded the district court
from considering anything other than our vacatur of the
schoolyard count.
Several circuits have held that when the court of appeals
vacates a sentence the district court may, upon remand, take
any evidence and hear any argument that it could have
considered in the original sentencing proceeding. See United
States v. Atehortva, 69 F.3d 679, 685 (2d Cir. 1995); United
States v. Jennings, 83 F.3d 145, 151 (6th Cir. 1996); United
States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992); United
States v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995); United
States v. Moore, 83 F.3d 1231, 1235 (10th Cir. 1996). Two
rationales have been given for this practice of de novo resen-
tencing. In Moore, the Tenth Circuit reasoned that when a
sentence has been vacated and the count remanded for resen-
tencing the defendant is in the same position he was in before
being sentenced for the first time. 83 F.3d at 1235. This is a
rather formalistic approach. Although upon Whren's first
appeal we remanded the case for resentencing without vacat-
ing his sentence, we do not want to rely now upon the
technical distinction between vacatur and remand_to which
we attached no apparent significance at the time_when
substantial rights are involved.
In Jennings the Sixth Circuit offered a functional rationale
for de novo resentencing upon remand: otherwise the parties
would be forced to litigate every conceivable sentencing issue
at the initial hearing, regardless of its relevance, lest they be
precluded from later raising an issue that becomes relevant
only because of subsequent events. The defendant in Jen-
nings had not objected at his first sentencing hearing to
certain findings in his pre-sentence report. The court of
appeals then remanded for resentencing because the district
court had overstated the quantity of drugs to be used in
computing the defendant's base offense level. Upon resen-
tencing it turned out that the findings in the PSR, immaterial
when the larger quantity of drugs was being considered,
would affect a sentence based upon the smaller quantity of
drugs.
The Seventh Circuit has rejected the de novo approach,
holding that "only an issue arising out of the correction of the
a subsequent appeal." United States v. Parker, 101 F.3d 527,
528 (7th Cir. 1996). The defendant in that case tried to raise
in his second appeal issues that he had not previously raised
(and that neither the district court nor the court of appeals
had therefore ever ruled upon) and that were not affected by
the remand for resentencing. By failing to raise the issues
upon the first appeal, the court of appeals held, the defendant
had waived them. Id.
This circuit has not previously adopted either approach to
the scope of resentencing on remand. We did hold in United
States v. Leonzo, 50 F.3d 1086, 1088 (1995), that upon remand
the Government could not offer new evidence in support of
the sentencing level for which it had unsuccessfully argued at
the original sentencing hearing. Absent special circum-
stances justifying the Government's initial failure to carry its
burdens of production and of persuasion, we saw "no reason
why it should get a second bite at the apple." Although
Whren argues that Leonzo should be limited to cases in which
a party tries upon remand to offer new evidence, rather than
to make a new legal argument, he suggests (and we can think
of) no reason for this distinction.
We think the waiver approach of the Seventh Circuit is
both preferable to the de novo approach followed in other
circuits and more consistent with our own reasoning in Leon-
zo. De novo resentencing is in essence a license for the
parties to introduce issues, arguments, and evidence that they
should have introduced at the original sentencing hearing.
The alternative of requiring the parties to raise all relevant
issues at the original sentencing hearing serves both equity
and efficiency: Each party gets early notice of the other's
position, and the district court can resolve all material issues
early on_when the record is fresh in mind_and in a single
proceeding, thereby minimizing the scope of any second pro-
ceeding, i.e., should the first result in a remand. We note
also that, had Whren raised his sentencing argument for the
first time not before the district court on remand but in his
original appeal, this court would have reversed his sentence
United States v. Myles, 96 F.3d 491, 495 (D.C. Cir. 1996). In
this second appeal it would be both anomalous and inefficient
to place Whren in a better position for having neglected to
raise a relevant argument in either the district court or in his
first trip to the court of appeals than he would be in if he had
neglected to raise it only in the district court.
We hold, therefore, that upon a resentencing occasioned by
a remand, unless the court of appeals expressly directs other-
wise, the district court may consider only such new argu-
ments or new facts as are made newly relevant by the court
of appeals' decision_whether by the reasoning or by the
result. While we think the Jennings court was rightly con-
cerned that a defendant might not have raised an issue at his
original sentencing because it was not then material_only to
find at resentencing that the issue had become material_the
solution tailored to that problem is for the district court not
to resentence the defendant de novo but to consider the newly
relevant issue. A defendant should not be held to have
waived an issue if he did not have a reason to raise it at his
original sentencing; but neither should a defendant be able to
raise an issue for the first time upon resentencing if he did
have reason but failed nonetheless to raise it in the earlier
proceeding. Under our approach a defendant may argue at
resentencing that the court of appeals' decision has breathed
life into a previously dormant issue, but he may not revive in
the second round an issue he allowed to die in the first. That
is just what Whren tried to do when he belatedly raised his
sentencing arguments in an effort to lower his sentencing
range from 168-210 months to 135-168 months. He had just
as much reason, and no less ability, to make the same
arguments at his original sentencing hearing.
Of course, under Federal Rule of Criminal Procedure 52(b)
the resentencing court may consider even an issue raised
belatedly if it is both obvious and prejudicial and therefore
arguably rises to the level of "plain error." United States v.
Olano, 507 U.S. 725, 734 (1993); see United States v. Saro, 24
F.3d 283, 286 (D.C. Cir. 1994) (error must be "so plain the
trial judge and prosecutor were derelict in countenancing it,
it"). Relief is available for plain error, however, only in those
relatively rare "circumstances in which a miscarriage of jus-
tice would otherwise result." United States v. Frady, 456
U.S. 152, 163 n.14 (1982).
In this case the district court did not plainly err in failing
to notice on its own the argument that the schoolyard en-
hancement should not apply to Whren's offense because his
presence near the school at the time of his arrest was
fortuitous. We had already rejected that argument in United
States v. McDonald, 991 F.2d 866, 868-70 (D.C. Cir. 1993).
Nor did the district court plainly err in not sua sponte
departing downward on the ground that the purpose of the
schoolyard enhancement would not be served in this case. If
there is no clear legal rule_whether expressed in a prior
decision or elsewhere_governing an issue, then the district
court's decision cannot be a plain error. United States v.
Merlos, 8 F.3d 48, 51 (D.C. Cir. 1993) (jury instruction
equating "strong belief" with belief "beyond a reasonable
doubt" not plain error because at time of trial no appellate
court had held instruction erroneous). Here the point was
far from clearly established. The only appellate authorities
that Whren could muster in support of his position were dicta
in McDonald, 991 F.2d at 870 (passenger carrying drugs on
train or subway speeding by school "might warrant a depar-
ture"), and in United States v. Rodriguez, 961 F.2d 1089, 1095
n.8 (3d Cir. 1992) (downward departure would be permissible
in hypothetical involving "defendant who speeds by a school
in a train or other vehicle on the way to a narcotics sale").
But it is not a plain error for a trial court not to follow a mere
dictum of the court of appeals. See United States v. Warren,
42 F.3d 647, 657-58 (D.C. Cir. 1994). Accordingly, the trial
court did not plainly err in failing sua sponte to notice this
argument.
For the reasons given above, the judgment of the district
court is
Karen LeCraft Henderson, Circuit Judge, concurring:
I concur in the affirmance but see no need for any extended
analysis or announcement of a new rule for resentencing on
remand. The first appellate panel remanded for the ministe-
rial resentencing on count two resulting from vacatur of the
count one conviction. 1 This was clear to the district court, it
is clear to me and it should have been clear to defense
counsel, whose failure to raise the meritorious merger argu-
ment at the first sentencing necessitated the remand. The
scope of the mandate aside, defense counsel knew that the
time for raising the fortuitous proximity issue was long past.
She failed to argue the point at sentencing and on the first
appeal. She could not reasonably request a third bite at that
particular apple, however tantalizing, after declining it twice.
The first panel's resentencing discussion in its entirety takes
one sentence of one paragraph, to wit:
Appellants contend that their convictions for violation of 21
U.S.C. § 841(a)(1), which proscribes possession with intent to
distribute controlled substances, including cocaine base, should
be vacated because that section describes a lesser-included
offense of 21 U.S.C. § 860(a), which proscribes possession with
intent to distribute a controlled substance within one thousand
feet of a school. Appellants rely on United States v. Williams,
782 F. Supp. 7, 8-9 (D.D.C. 1992), aff'd without opinion, 6 F.3d
829 (D.C. Cir. 1993), in which the District Court concluded that
section 841 offenses were, in fact, lesser included offenses of
section 860(a) offenses. The government agrees with appel-
lants' argument. Consequently, pursuant to the agreement of
the parties, we will remand to the District Court for entry of
an amended judgment and resentencing on Counts One and
Two.
United States v. Whren, 53 F.3d 371, 376 (1995) (emphasis added).
The remanding panel could have, more directly and more succinctly
than it did, simply instructed the district court to vacate the
conviction and sentence on count one and reimpose the sentence on
count two. The fact that its language is less precise does not affect
its plain meaning in my view.