United States v. Peña-Hernández
United States v. Peña-Hernández
Opinion of the Court
This is an appeal from resentencing after remand from this court on defendant’s prior appeal. See United States v. Peña-Hernandez, 146 Fed.Appx. 499 (1st Cir. 2005) (per curiam) (unpublished). In his present appeal, defendant’s sole argument is that the government’s refusal to give him another opportunity for a safety-valve debriefing
That argument is barred by the law of the case doctrine, under which “available claims of error not raised in an initial appeal may not be raised during subsequent appeals in the same case.” United States v. Moran, 393 F.3d 1, 11 (1st Cir. 2004) (emphasis omitted). Although that doctrine is subject to exceptions, see United States v. Bell, 988 F.2d 247, 250-51 (1st Cir. 1993), none of those exceptions applies here. Having not argued in the district court or in his first appeal that the government had a duty to offer him a third debriefing opportunity before his original sentencing — although he clearly had an incentive to do so at those times — the law of the case doctrine precludes him from making this argument in the present appeal. Moran, 393 F.3d at 11; see also United States v. Ticchiarelli, 171 F.3d 24, 28-29 (1st Cir. 1999).
Even on resentencing, while defendant repeatedly stated his willingness to undergo another debriefing, he never argued that the government was obligated to accept his offer. Accordingly, even if that argument was not waived under the law of the case doctrine, it was forfeited and is therefore renewable only for plain error. See generally United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
It is hardly “plain” that the government has a duty to give a defendant multiple
Moreover, even if the district court had plainly erred in failing to require the government to give defendant a further debriefing opportunity and defendant was prejudiced thereby, its failure to do so would not satisfy the remaining prong of plain error review. Under the circumstances of this case, the lack of such an opportunity did not constitute a miscarriage of justice. Olano, 507 U.S. at 736, 113 S.Ct. 1770.
Accordingly, the sentence is affirmed. See 1st Cir. Loc. R. 27.0(c).
. Before his original sentencing hearing, defendant was given two opportunities for a safety-valve debriefing, but, on both occasions, he refused to provide any information or to clarify the statements made at his post-arrest interview. The government made clear at that time that it did not intend to offer defendant a third such opportunity.
Reference
- Full Case Name
- United States v. Simeón PEÑA-HERNÁNDEZ
- Cited By
- 1 case
- Status
- Published