District Court Can't Revisit Sentencing Issues Unaffected by Guideline Amendment in Resentencing Procedure

U.S. v. Washington, 2014 WL 3537842 (7/18/14) (Kan.) (Published) - A defendant cannot use § 3582(c)(2) to have the 10th resolve a dispute previously unresolved on appeal. In this case on direct appeal Mr. Washington challenged the district court's crack quantity calculations in 2 respects: (1) the estimation that he and his co-conspirators bought a certain amount of crack with pooled money and (2) the conversion of money into an amount of crack. The 10th elected not to resolve issue (2) because when it resolved issue (1) Mr. Washington was stuck in the same offense level regardless of the resolution of issue (2). By & by the crack guidelines change and now Mr. Washington would be in a different offense level under the new guidelines if issue (2) were resolved in his favor. He filed a § 3582(c)(2) motion which recognized the district court was stuck with its previous ruling on issue (2), but asked the court to deny the claim on law-of- the-case grounds and move the case along to the 10th, which hopefully would resolve issue (2) in his favor, rendering him eligible for relief.

On the positive side, taking the side of the 9th over the 6th, the 10th holds it is bound by Hahn [the infamous appeal waiver case] to conclude it had jurisdiction to hear the case under 28 U.S.C. § 1291. This is so even if there wasn't jurisdiction under § 3742(a), given the case didn't precisely fit under any of the appeal categories listed, e.g. "imposed sentence in violation of law" [where the district court followed the law of the case]. Nor did the 10th buy the government argument that Mr. Washington wasn't aggrieved by the lower court decision. He didn't seek denial of his motion. He simply conceded the district court's lack of power to help him. But in the end Mr. Washington gets no relief. § 3582(c)(2) and § 1B1.10 don't allow courts to revisit aspects of a sentence unaffected by the retroactively applicable guideline amendment. The 10th distinguishes U.S. v. Battle, 706 F.3d 1313 (10th 2013), where the 10th allowed the district court to resolve a disputed drug quantity issue in a § 3582(c)(2) case. In Battle the contemplated procedure flowed directly from the original record, memos and previously-made factual findings. Here, what Mr. Washington asked for doesn't flow from a legal determination made on the previous appeal. And Mr. Washington didn't ask the 10th to resolve issue (2) based on the briefs in the prior appeal. Those briefs only argued the issue in a couple of sentences whereas he took 12 pages on this appeal. Mr. Washington could try to seek a recall of the mandate. But the 10th didn't think that would be too fruitful, especially given the skimpy original briefing on issue (2).