20-2698 United States v. Sandford

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23rd of September, two thousand twenty-one.

Present: DEBRA ANN LIVINGSTON, Chief Judge, DENNY CHIN, WILLIAM J. NARDINI, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 20-2698

JAMES EDWARD SANDFORD III, AKA “MALICE,”

Defendant-Appellant. * _____________________________________

For Appellee: TIFFANY H. LEE, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, New York.

For Defendant-Appellant: ROBERT E. WOOD, Law Office of Robert E. Wood, Rochester, NY.

* The Clerk of Court is respectfully directed to amend the official caption as set forth above.

1 Appeal from a judgment of the United States District Court for the Western District of New

York (Larimer, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant James Edward Sandford III (“Sandford”) appeals from the district

court’s order of August 10, 2020, declining to conduct a resentencing proceeding. We assume

the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.

* * *

An appellate court “may remand [a] cause and . . . require such further proceedings to be

had as may be just under the circumstances.”

; see also United States v. Ojeda,

(2d Cir. 2020) (“As a general matter, appellate courts have broad discretion to

mandate further proceedings on remand.”). In the sentencing context, an appellate court’s

discretion “extends to the scope of issues to be considered by the resentencing court.” Ojeda,

.

If a case is remanded for a limited (rather than de novo) resentencing, the “so-called

‘mandate rule’” applies, which “forecloses relitigation of all issues previously waived by the

defendant or decided by the appellate court.” United States v. Quintieri,

(2d Cir. 2002). The mandate rule “prevents relitigation in the district court not only of matters

expressly decided by the appellate court, but also precludes re-litigation of issues impliedly

resolved by the appellate court’s mandate.” Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry. Co.,

(2d Cir. 2014) (emphasis added) (internal quotation marks omitted).

“Furthermore, where the mandate limits the issues open for consideration on remand, the district

2 court ordinarily may not deviate from the specific dictates or spirit of the mandate by considering

additional issues on remand.”

In general, a district court is required to resentence a defendant “in light of the

circumstances as they stood at the time of his resentencing.” Werber v. United States,

(2d Cir. 1998); see also United States v. Bryson,

(2d Cir. 2000) (“[A]

court’s duty is always to sentence the defendant as he stands before the court on the day of

sentencing.”). In Pepper v. United States, the Supreme Court held that “a district court at

resentencing may consider evidence of the defendant’s postsentencing rehabilitation and that such

evidence may, in appropriate cases, support a downward variance from the . . . Federal Sentencing

Guidelines range.”

, 481 (2011) (emphasis added). Our Court has since clarified,

however, that “Pepper held that where a Court of Appeals remands for a plenary resentencing, the

district court must be allowed to consider the facts as they are at the time of imposing the new

sentence.” Shabazz v. United States,

(2d Cir. 2019) (emphasis added). But

“Pepper did not preclude remands that would reopen only limited aspects of the previously

imposed sentence . . . .”

(emphasis added). Indeed, “Pepper expressly clarified that it did

not ‘mean to preclude courts of appeals from issuing [limited] remand orders, in appropriate cases,

that may render evidence of postsentencing rehabilitation irrelevant in light of the narrow purposes

of the remand proceeding.’”

(quoting Pepper, 562 U.S. at 505 n.17).

Sandford’s argument that Sandford I required the district court to conduct a resentencing

fails. The Sandford I decision cannot reasonably be read to support Sandford’s position. The

decretal language clearly instructs the district court to conduct a resentencing only if Sandford’s

corrected criminal history score would result in a different sentence. And in making that narrow

3 determination, the district court was not required to consider any evidence of Sandford’s

postsentencing rehabilitation.

The five additional arguments that Sandford raises in his pro se supplemental brief fail as

well. Sandford’s first argument, that the district court erred in not considering his postsentencing

rehabilitation, fails for the reasons described above. His second and third arguments — that his

sentence was substantively unreasonable and that the district court made additional errors in

calculating his criminal history score — were rejected in Sandford I and are therefore barred by the

mandate rule. Sompo Japan,

. Sandford’s fourth and fifth arguments, while not

barred by the mandate rule, are likewise meritless. Sandford argues that this Court failed to

consider his strongest arguments in his initial appeal and ignored his request to stay the mandate

so that he could request an extension of time to petition for a rehearing en banc. But an appeal

of a district court’s resentencing order is not the proper channel for the review of a prior decision

of this Court.

We have considered Sandford’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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