United States 5th Circuit Court of Appeals Reports

U.S. v. ELIZONDO, 06-10131 (5th Cir. 1-15-2007) UNITED
STATES OF AMERICA, Plaintiff-Appellee, v. ENRIQUE ELIZONDO,
ALSO KNOWN AS RICKEY ELIZONDO, Defendant-Appellant. No.
06-10131. United States Court of Appeals, Fifth Circuit.
Filed January 15, 2007.

Appeal from the United States District Court for the
Northern District of Texas, No. 3:03-CR-395-3.

Before HIGGINBOTHAM, SMITH, and DEMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge.

Enrique Elizondo was convicted of conspiracy to commit mail
fraud. We affirmed his conviction but remanded for
resentencing in light of United States v. Booker, 543 U.S.
220 (2005). He now appeals his new sentence, including the
restitution order. We affirm t he restitution but vacate
the sentence and remand for resentencing.

I.

A jury convicted Elizondo for his participation in a scheme
to defraud undocumented aliens by promising them
immigration services. We remanded “for resentencing in
accordance with Booker.” United States v. Garza, 429 F.3d
165, 174 (5th Cir. 2005), cert. denied, 126 S. Ct. 1444
(2006). The district court imposed the same sentence on
remand.

The heart of this appeal is the court’s reasons for doing
so. Elizondo contends that the court erroneously believed
it was constrained by our opinion affirming the sufficiency
of the evidence for Elizondo’s conviction. Specifically,
Elizondo argues that the court (1) refused to consider his
relevant conduct[fn1] in resentencing and (2) refused to
entertain objections to the restitution penalty.

The district court explained the reason it resentenced
Elizondo to the same sentence:

I am going to resolve the defendant’s objections in the
manner recommended by the probation officer. . . . Beyond
saying that, I want to make just a couple of comments. . .
. It seems to me that the submissions that you gave me
were accurate in the sense that the lynchpin of your
argument is that Mr. Elizondo’s relevant conduct within
the meaning of Guideline Section 1B1.3 was limited to his
acts and omissions at the Corsicana office, and thus, he
could not reasonably foresee the entire scope of this
conspiracy or joint criminal activity so that he could not
be jointly and severally liable for the amount of the
restitution order which was [$176,000.00] or for the
offense level that was computed in the Presentence Report
which was based upon the amount of loss to these victims,
the number of victims and the fact that the victims were
especially vulnerable. The reason I think that argument
concerning relevant conduct is off the mark is the
language of the Court of Appeals itself in this written
opinion issued by the Court on October 25th, 2005. . . .
In other words, I think the view that Mr. Elizondo is
urging now as to his role in the conspiracy is at variance
with what the Court of Appeals has already determined the
facts in this case to be, viewed in the light most
favorable to the government’s verdict, and so I appreciate
the diligence that you have shown and your
professionalism in making these arguments, but I simply am
not persuaded by them, and so I will overrule the
defendant’s objections and resolve those objections in the
manner recommended by the probation officer.

Similarly, the court stated the reasons for refusing to
amend the amount of restitution:

I believe that the Mandatory Victim Restitution Act of
1996 is applicable. . . . And the amount of loss was
originally determined — and I see no reason to
change this determination now — to be $176,176. . .
. One comment I should probably make in the event that
another appeal is taken from this sentence, Ms. Brandt
on behalf of Mr. Elizondo made the point in her objections
and sentencing memorandum that at most five hundred
dollars in restitution could be ordered to be made by Mr.
Elizondo because of his limited role in this joint
criminal activity. I am not clear whether that argument is
really open to Mr. Elizondo on this resentencing,
although admittedly restitution orders are a part of a
sentence in a criminal case. But it appeared to me that
argument might have been foreclosed by the Court of
Appeals in its opinion in this case. . . . So as I said, I
think certainly the opinion of the Court of Appeals can be
read to foreclose the argument made here by Mr. Elizondo
limiting the amount of restitution he has been ordered to
make. But even if that issue is fully open again on
resentencing, I see no reason to make any different
restitution order now than I did originally and thus
decline to do so.

II.

Elizondo appeals on two grounds. We address each in turn.

A.

Elizondo contends that the court erroneously refused to
consider his relevant conduct in his second sentence
because of its incorrect belief it was bound by our prior
opinion’s discussion of the facts.[fn2] In response, the
government urges that the court (1) did not base its
decision on our prior opinion and (2) could not have
properly considered Elizondo’s relevant conduct, because of
the mandate rule.[fn3]

“We review de novo a district court’s interpretation of our
remand order, including whether the law-of-the-case
doctrine or mandate rule forecloses any of the district
court’s actions on remand.” Pineiro, 470 F.3d at 204. The
district court’s statements about our prior opinion and
that opinion’s binding effect on the district court are
properly analyzed under the law of the case doctrine, under
which “‘an issue of law or fact decided on appeal may not
be reexamined either by the district court on remand or by
the appellate court on a subsequent appeal.'” United States
v. Becerra, 155 F.3d 740, 752 (5th Cir. 1998) (quoting Ill.
Cent. Gulf R.R. v. Int’l Paper Co., 889 F.2d 536, 539 (5th
Cir.1989)).

Despite the government’s arguments to the contrary, the
district court appears to have considered itself
constrained by our prior decision. The court stated that
the reason it thought the “argument concerning relevant
conduct is off the mark is the language of the Court of
Appeals.” Further, Elizondo’s argument failed, the court
states, because it “is at variance with what the Court of
Appeals has already determined the facts in this case to
be.” The court did not give any independent reasons for
rejecting Elizondo’s request that the court look at his
relevant conduct; it solely relied on our prior opinion.

The court erred by considering itself bound by our
determination of the facts. In our prior opinion, we
determined whether a reasonable jury could have found
Elizondo guilty.[fn4] We did not determine what actually
happened; instead, we determined whether the evidence was
sufficient to support the verdict. For sentencing, however,
a court does not draw every reasonable inference in favor
of the government, so our conclusions about the facts being
sufficient were not binding at resentencing.

Moreover, in our prior opinion we determined the
sufficiency of the evidence to establish that Elizondo had
committed an offense, but sentencing requires evaluating
facts beyond the facts required to establish an offense. In
United States v. Murrow, 177 F.3d 272, 301 (5th Cir. 1999),
we explained that sentencing requires a judge to look at
all the defendant’s relevant conduct, not just the conduct
that constitutes the offense.[fn5] Even if our prior
opinion had established the facts of the case, it
established only the facts relating to the criminal
liability. The district court still needed to decide other
relevant facts.

The government posits that even if the district court
erred, we should not vacate the sentence and remand,
because the district court lacked the power to evaluate
Elizondo’s relevant conduct under the mandate rule. That
rule “compels compliance on remand with the dictates of a
superior court and forecloses relitigation of issues
expressly or impliedly decided by the appellate court.”
Lee, 358 F.3d at 321. We have adopted a restrictive rule
for evaluating the scope of a mandate, id. at 321; “the
resentencing court can consider whatever this court directs
— no more, no less,” id. at 323.

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.[fn6] The district court
could not accomplish its mandate without considering
relevant conduct, so the mandate rule did not preclude it
from doing so. Because it erroneously considered itself
bound by our prior discussion of the facts, it erred in
resentencing.

B.

Elizondo complains that the district court erroneously
refused to alter his restitution. The court, however, was
precluded by the mandate rule from considering a change to
the restitution penalty. We remanded for resentencing in
accordance with Booker, which does not implicate the
statute under which Elizondo was ordered to pay restitution
— the Mandatory Victims Restitution Act.[fn7] Thus,
resentencing in accordance with Booker does not require
reevaluating the restitution order. The district court
would have exceeded its mandate if it changed the amount of
restitution, so it did not err in refusing to alter
Elizondo’s restitution penalty.

We AFFIRM Elizondo’s restitution, but we VACATE his
sentence and REMAND for resentencing in accordance with
this opinion.

[fn1] See U.S.S.G. § 1B1.3.

[fn2] Elizondo’s brief analyzes the case through the lense
of the doctrine of collateral estoppel, but we analyze
resentencing cases under the law of the case doctrine.
E.g., United States v. Pineiro, 470 F.3d 200, 204-05 (5th
Cir. 2006); United States v. Hamilton, 440 F.3d 693, 697
(5th Cir.), cert. dism’d, 126 S. Ct. 2887, cert. denied,
127 S. Ct. 176 (2006); United States v. Lee, 358 F.3d 315,
320 (5th Cir. 2004).

[fn3] The government also argues that Elizondo waived this
argument by not raising the issue of his relevant conduct
in his first appeal. Elizondo’s prior brief did raise the
issue of his relevant con duct, so the government’s
contention is meritless.

[fn4] In our prior opinion, we made plain that we were
reviewing only whether the evidence was sufficient. Garza,
429 F.3d at 169 (“This evidence is clearly sufficient for a
rational jury, viewing the evidence in the light most
favorable to the Government, to have found all the elements
of conspiracy to commit mail fraud beyond a reasonable
doubt.”).

[fn5] “Under the Sentencing Guidelines, the sentencing range
for a particular offense is determined on the basis of all
`relevant conduct’ in which the defendant was engaged and
not just with regard to the conduct underlying the offense
of conviction.” Murrow, 177 F.3d at 301. See also U.S.S.G.
§ 1B1.3 cmt. n. 1 (“The principles and limits of
sentencing accountability under this guideline are not
always the same as the principles and limits of criminal
liability.”).

[fn6] United States v. Alonzo, 435 F.3d 551, 553 (5th Cir.
2006) (“It is apparent that facts relevant to sentencing
include relevant conduct under U.S.S.G. § 1B1.3.”).

[fn7] See Garza, 429 F.3d at 170 (“Booker’s holding that the
Sentencing Guidelines are advisory does not directly affect
the MVRA since it is a statute `distinct and separate from
the United States Sentencing Guidelines.’ See United States
v. Sosebee, 419 F.3d 451, 462 (6th Cir.), cert. denied, 126
S. Ct. 843 (2005).”).