           United States Court of Appeals
                      For the First Circuit


No. 13-1225

                     UNITED STATES OF AMERICA,

                             Appellee,

                                v.

              CARLOS DÁVILA-FÉLIX, a/k/a Carlos Mona,

                       Defendant, Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF PUERTO RICO

          [Hon. Francisco A. Besosa, U.S. District Judge]


                              Before

               Torruella and Lipez, Circuit Judges,
                    and Gelpí,* District Judge.


     Ignacio Fernández-de Lahongrais, by appointment of the court,
for appellant.
     Luke V. Cass, Assistant United States Attorney, with whom Rosa
Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa,
Assistant United States Attorney, Chief, Appellate Division, and
Marcela Claudia Mateo, Assistant United States Attorney, were on
brief, for appellee.



                          August 18, 2014




*
    Of the District of Puerto Rico, sitting by designation.
            TORRUELLA, Circuit Judge.   This case marks the second

time that Appellant Carlos Dávila-Félix ("Dávila") has appeared

before this court to challenge his sentence. In March 2009, a jury

convicted Dávila of robbing an FDIC-insured bank using force and

intimidation, in violation of 18 U.S.C. §§ 2113(a), (d) ("Count

One"), and of carrying and brandishing a firearm to commit that

robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) ("Count

Two").     As to Count One, the district court imposed a mandatory

life sentence pursuant to the federal "three strikes" statute, 18

U.S.C. § 3559(c)(1), and as to Count Two, it sentenced Dávila to

the mandatory minimum of 84 months' imprisonment, to be served

consecutively.     In Dávila's first appeal, he argued that the

district court erred in sentencing him under the "three strikes"

statute.    We agreed and remanded for resentencing.

            At the resentencing hearing, the government presented

additional evidence about Dávila's prior offenses.     The district

court found that the evidence established that Dávila was a career

offender, and the court enhanced Dávila's Guidelines sentence

accordingly. As a result, Dávila received a sentence of 300 months

for Count One and 120 months for Count Two, for a total of 420

months' imprisonment.     Dávila now appeals his second sentence,

arguing that the district court erred by permitting the government

to introduce additional evidence at resentencing to support the




                                 -2-
career offender enhancement.         After careful consideration, we

affirm.

                            I.    Background

           The   details   of    Dávila's   offense   conduct   and   first

sentencing were described thoroughly in United States v. Dávila-

Félix, 667 F.3d 47 (1st Cir. 2011) ("Dávila I"), so we provide only

a brief recitation of those facts here.

           In 2003, beginning in May and ending in November, Dávila

participated in a string of six bank robberies in Puerto Rico. The

Commonwealth arrested Dávila and charged him with armed robbery and

related weapons offenses arising out of five of the six robberies.

The fourth robbery that took place on September 8, 2003, however,

was not included in the charges.       Dávila pled guilty and received

a six-year sentence.

           In April 2008, Dávila was again indicted, this time for

violations of federal law stemming from the previously uncharged

September 8, 2003, robbery.        Before trial began, the government

filed an information pursuant to 21 U.S.C. § 851(a)(1), giving

notice that it intended to seek a mandatory life sentence under the

federal "three strikes" statute, 18 U.S.C. § 3559(c)(1).1               The


1
    The federal "three strikes" statute provides that:

      [A] person who is convicted in a court of the United
      States of a serious violent felony shall be sentenced to
      life imprisonment if -- (A) the person has been convicted
      (and those convictions have become final) on separate
      prior occasions in a court of the United States or of a

                                    -3-
information listed four prior convictions that the government

believed triggered the "three strikes" statute: (1) a May 23, 1993,

conviction     for   second-degree     murder;     (2)   a    June   25,   1993,

conviction    for    violations   of    Article    401   of    the   Controlled

Substances Act of Puerto Rico; (3) a July 20, 2000, conviction for

a violation of Article 404 of the Controlled Substances Act of

Puerto Rico; and (4) the April 5, 2004, conviction for bank robbery

and weapons violations.

             After a four-day trial, the jury convicted Dávila on both

the   robbery    and   firearm    counts,    and    he   was    sentenced     on

September 29, 2009. At that sentencing hearing, the district court

found that Dávila had two prior violent felony convictions: (1) the

second-degree murder conviction from May 26, 1993, and (2) the

armed bank robbery conviction from April 5, 2004.              The sentencing

judge began by observing that these two convictions qualified

Dávila as a career offender,2 but ultimately concluded that the


      State of -- (i) 2 or more serious violent felonies; or
      (ii) one or more serious violent felonies and one or more
      serious drug offenses; and (B) each serious violent
      felony or serious drug offense used as a basis for
      sentencing under this subsection, other than the first,
      was committed after the defendant’s conviction of the
      preceding serious violent felony or serious drug offense.

18 U.S.C. § 3559(c).
2
   The Sentencing Guidelines provide that a defendant is a career
offender if:

      (1) the defendant was at least eighteen years old at the
      time the defendant committed the instant offense of

                                       -4-
prior offenses triggered a mandatory life sentence under the "three

strikes" statute. Accordingly, the district court sentenced Dávila

to life imprisonment as to Count One, and to the mandatory minimum

of 84 months for Count Two, to be served consecutively.

            Dávila's first appeal followed.    He argued that his

sentence was imposed in error because his April 5, 2004, armed

robbery conviction did not qualify as a predicate offense under

either the "three strikes" or career offender provisions.         In

Dávila I, this court agreed, holding that the April 2004 conviction

did not qualify as a prior conviction for "three strikes" or career

offender purposes because the April 2004 conviction occurred after

-- not prior to -- Dávila's commission of the September 8, 2003,

offenses.   667 F.3d at 52, 55.

            Additionally, we found that the record on appeal was

inadequate to establish that Dávila's June 25, 1993, conviction

qualified as a "controlled substance offense"3 that could trigger


      conviction; (2) the instant offense of conviction is a
      felony that is either a crime of violence or a controlled
      substance offense; and (3) the defendant has at least two
      prior felony convictions of either a crime of violence or
      a controlled substance offense.

U.S.S.G. § 4B1.1(a).
3
    As used here, a "controlled substance offense" is:

      [A]n offense under federal or state law, punishable by
      imprisonment for a term exceeding one year, that
      prohibits the manufacture, import, export, distribution,
      or dispensing of a controlled substance (or a counterfeit
      substance) or the possession of a controlled substance

                                  -5-
the career offender sentencing enhancement. Id. at 55-57. As this

court explained in Dávila I, the 1993 conviction stemmed from two

violations of Article 401 of the Controlled Substances Act of

Puerto Rico.           That statute criminalizes a range of offenses

including concealment, distribution, dispersal, and possession with

intent to distribute controlled substances.                See P.R. Laws Ann.

tit. 24, § 2401.        The record on appeal, however, was insufficient

to allow this court to determine whether Dávila's June 1993

conviction was for merely concealing a controlled substance, which

would not qualify as a predicate "controlled substance offense," or

whether the conviction was for possession with intent to distribute

a controlled substance, which would qualify as a predicate offense.

Id.    We thus reversed and remanded for resentencing.

            At resentencing, the government provided the district

court with additional documents -- including Dávila's change of

plea   motion     --    to   prove   that   the   June   25,   1993,   conviction

qualified as a controlled substance offense that supported the

application of the career offender enhancement.4               Dávila objected,

arguing    that    this      court's    opinion    in    Dávila   I    foreclosed



       (or a counterfeit substance) with intent to manufacture,
       import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(b).
4
   In addition, the government offered for the first time the
search and seizure order and certificate of forensic analysis
related to the June 1993 conviction.

                                        -6-
reconsideration of the 1993 conviction, and that the government

should not be given an opportunity to present supplemental evidence

to establish the career offender enhancement on remand.

             After briefing by both parties, the district court ruled

that the remand was not limited in scope and that the government

could introduce the additional evidence. The court then determined

that -- in light of the May 1993 second-degree murder conviction

and the June 1993 conviction for drug offenses -- Dávila qualified

as a career offender. This meant that Dávila's guidelines sentence

for Count One increased from the original range of 84 to 105 months

to an enhanced range of 360 months to life.         The district court

then imposed a 300-month sentence for Count One -- the statutory

maximum -- to run consecutively with Dávila's 120-month sentence on

Count Two.

                             II.   Analysis

             This court reviews the correctness of a district court's

legal analysis at sentencing de novo.         Sampson v. United States,

724 F.3d 150, 161 (1st Cir. 2013); United States v. Wallace, 573

F.3d 82, 92 (1st Cir. 2009).         We thus consider anew Dávila's

assertions that the sentencing judge erred by permitting the

government to introduce additional evidence related to his prior

conviction, thereby violating the law of the case doctrine and

exceeding the scope of remand. See United States v. Genao-Sánchez,

525 F.3d 67, 69 (1st Cir. 2008) (explaining that the interpretation


                                   -7-
of this court's mandate "is a quintessentially legal question, so

our review is plenary").

           Before we address the merits of Dávila's claim, however,

a bit of background on the governing legal framework is in order.

The law of the case doctrine is a prudential principle rooted in

important policy interests like "stability in the decisionmaking

process, predictability of results, proper working relationships

between trial and appellate courts, and judicial economy."       United

States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993) (internal

quotation marks and citation omitted).      It provides generally that

"when a court decides upon a rule of law, that decision should

continue to govern the same issues in subsequent stages in the same

case."   Wallace, 573 F.3d at 87-88 (internal quotation marks and

citations omitted).

           The so-called "mandate rule" is a branch of the law of

the case doctrine that "prevents relitigation in the trial court of

matters that were explicitly or implicitly decided by an earlier

appellate decision in the same case."       United States v. Moran, 393

F.3d 1, 7 (1st Cir. 2004).        Put another way, the mandate rule

requires that the trial court conform with the directions of the

appellate court on remand.       Bell, 988 F.2d at 251.     A district

court seeking to determine the scope of remand must therefore

consider carefully "both the letter and the spirit of the mandate,

taking   into   account   the   appellate   court's   opinion   and   the


                                   -8-
circumstances it embraces." Genao-Sánchez, 525 F.3d at 70 (quoting

United States v. Connell, 6 F.3d 27, 30 (1st Cir. 1993)).

            In keeping with this legal framework, we begin our review

by considering carefully the letter and spirit of Dávila I.                As

pertinent to this appeal, our opinion in Dávila I explained that

the district court had interpreted the "three strikes" statute and

the career offender enhancement erroneously, and that the record

did not support the application of either.             677 F.3d at 52-55.

Although    we   did   not   foreclose   the   possibility    that   Dávila's

violations of Article 401 of the Controlled Substances Act of

Puerto Rico could qualify as a "controlled substance offense"

within the meaning of U.S.S.G. § 4B1.1, we held that the government

had not provided sufficient record evidence for this court to make

such a determination one way or the other.             Id. ("On the record

before     us,   the   information   presented      regarding    these   drug

convictions simply does not contain the requisite information that

would permit a court to determine whether they indeed constitute

'controlled      substance     offenses'       as   defined     by   U.S.S.G.

§ 4B1.2(b).").     We ultimately concluded that the "record provides

insufficient information to justify the imposition of the sentence"

based on Dávila's drug offenses, and that "the sentence imposed by

the district court is reversed and the case is remanded for

resentencing."     Id. at 57-58.




                                     -9-
          Pointing to this language, the government argues that

Dávila I includes no express limitation on the district court's

ability to receive new arguments or evidence at resentencing.   In

the absence of any such prohibition, the government posits that the

district court was free to consider additional evidence introduced

for the first time at resentencing.   See United States v. Bryant,

643 F.3d 28, 33 (1st Cir. 2011).

          The government is correct that Dávila I imposed no

express limitations on the scope of remand.   However, the absence

of an express limitation does not a limitless remand make.   Unlike

some of our sister circuits, the First Circuit does not generally

allow de novo resentencing on remand.    Compare United States v.

McFalls, 675 F.3d 599, 605 (6th Cir. 2012) ("The presumption in

favor of a general remand is necessarily strong in the context of

a resentencing because the calculation of a sentence under the

Guidelines requires a balancing of many related variables, and

these variables do not always become fixed independently of one

another." (internal quotation marks and citations omitted)), and

United States v. Matthews, 278 F.3d 880, 885-86 (9th Cir. 2002)

("On remand, the district court generally should be free to

consider any matters relevant to sentencing, even those that may

not have been raised at the first sentencing hearing, as if it were

sentencing de novo."), with United States v. Cruzado-Laureano, 527

F.3d 231, 234 (1st Cir. 2008) ("Although some circuits do generally


                               -10-
allow de novo resentencing on remand, the First Circuit does not."

(citations omitted)).

          The rule of this circuit is that "upon a resentencing

occasioned by a remand, unless the court of appeals [has expressly

directed otherwise], the district court may consider only such new

arguments or new facts as are made newly relevant by the court of

appeals' decision -- whether by the reasoning or the result."

United States v. Ticchiarelli, 171 F.3d 24, 32 (1st Cir. 1999)

(alteration in original) (quoting United States v. Whren, 111 F.3d

956, 960 (D.C. Cir. 1997)).   We therefore must determine whether

the evidence regarding Dávila's June 1993 conviction was made newly

relevant by either the reasoning or result of Dávila I.

          Dávila contends that the career offender enhancement was

not made newly relevant by Dávila I, which found the record

evidence of his 1993 conviction insufficient to support the career

offender enhancement under the long-since-established modified

categorical approach.5   667 F.3d at 56.    In Dávila's view, the

government had access to the evidence of his 1993 conviction at the

first sentencing as well as the opportunity to present it then.


5
  The modified categorical approach set forth in Taylor v. United
States, 495 U.S. 575, 599-602 (1990), establishes that a court
seeking to determine whether a prior conviction qualifies as a
predicate offense at sentencing must look first to the statutory
definition of the offense.      If the statute is divisible and
encompasses both predicate and non-predicate offense conduct, the
court should consult certain documents of record to determine
whether predicate conduct formed the basis of the prior conviction.
Id.; Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).

                               -11-
Thus, the government's failure to provide adequate support for the

career offender enhancement at the first sentencing did not make

the topic newly relevant; it constituted waiver.           In addition,

Dávila argues that we ought to follow our sister circuits in

holding that the interests of fairness and judicial economy must

prevent the government from getting a "second bite at the apple"

after having failed to meet its burden to establish an enhancement

at the first sentencing.     We take each argument in turn.6

          Beginning with the question of whether the government's

career offender argument was newly relevant or waived, we find this

court's analysis in Ticchiarelli particularly instructive.            In

Ticchiarelli,   we    held   that    our   mandate   did   not   preclude

consideration of the defendant's new argument as to drug quantity

at resentencing.     Ticchiarelli, 171 F.3d at 31-33.       We explained

that where our mandate does not expressly preclude it, "the

district court may consider . . . such new arguments or new facts

as are made newly relevant by the court of appeals' decision." Id.

at 32 (quoting Whren, 111 F.3d at 960).      This is true even in cases



6
   Dávila also argues that the government's introduction of newly
acquired evidence at resentencing ought to have been rejected for
failure to comply with Federal Rule of Criminal Procedure 33(b)(1).
However, Rule 33(b)(1) deals only with the ability of criminal
defendants to seek new trials on the basis of "newly discovered
evidence" found within three years of the date of their
convictions. Fed. R. Crim. P. 33(b)(1). As Dávila's resentencing
involved neither "newly discovered evidence" nor a motion for a new
trial, Rule 33(b)(1) is entirely inapplicable to this appeal.
Accordingly, we will spill no more ink on the subject.

                                    -12-
where the defendant had the opportunity to present his position at

his first sentencing hearing "if he did not have a reason to raise

it at his original sentencing."   Id. (quoting Whren, 111 F.3d at

960).   Put another way, "[w]hether there is a waiver depends not

. . . on counting the number of missed opportunities . . . to raise

an issue, but on whether the party had sufficient incentive to

raise the issue in the prior proceedings."   Id. at 32-33.

          In Ticchiarelli's first sentencing hearing, he had no

incentive to argue drug weight because it could not affect his

sentence; the district court had already issued a ruling that would

have made any such argument merely academic.     Id. at 33.   As a

defendant is under no obligation to "raise every objection that

might have been relevant" had the district court not already ruled

to the contrary, we found that Ticchiarelli should be afforded the

opportunity to present his newly relevant evidence of drug quantity

at resentencing.   Id. (citing United States v. Atehortva, 69 F.3d

679, 684-85 (2d Cir. 1995) (holding that the government could

articulate new grounds for a departure at resentencing where the

defendant's sentence had initially been automatically set at the

statutory maximum for reasons that were no longer applicable after

the appellate court's decision in an earlier appeal)).

          In Dávila's case, the district court applied Ticchiarelli

and found that the government had no incentive to delve into the

June 1993 conviction at Dávila's first sentencing, and thus there


                               -13-
was no waiver.   We agree.   The consequence of the district court's

erroneous application of the "three strikes" statute at the first

sentencing hearing was a mandatory sentence of life imprisonment.

That mandatory sentence made irrelevant any discussion of potential

sentencing enhancements at the first sentencing.      However, this

court's decision reversing the mandatory life sentence made the

subject of the Guidelines generally, and the career offender

enhancement specifically, newly relevant at resentencing.7

          In response, Dávila argues that the government's position

is more closely analogous to that of the appellant in Bell than in

Ticchiarelli.    In Bell, this court affirmed the district court's

decision to prevent the defendant from challenging -- for the first

time at resentencing -- his status as an armed career criminal.

988 F.2d at 248-50. Similarly, Dávila reasons, the government here



7
   In this regard, Dávila's case is readily distinguishable from
the portion of Ticchiarelli holding that the district court erred
by considering at resentencing an unrelated Florida sentence. 171
F.3d at 35-36. In that instance, we explained that the Florida
sentence did not constitute a "prior sentence" as defined by
U.S.S.G. § 4A1.2(a)(1). Id. Additionally, we observed that unlike
the drug quantity issue, the Florida sentence was not made newly
relevant by virtue of our decision that the district court should
have treated Ticchiarelli's drugs as marijuana rather than hashish
oil for Guidelines purposes. See id. Certainly, the reversal of
a discretionary sentence alone does not render newly relevant at
resentencing alternative arguments that were relevant but not
argued by the government at a defendant's initial sentencing. But
that is not the case before us. Our decision in Dávila I reversed
the imposition of a mandatory life sentence under § 3559, not a
discretionary sentence, making newly relevant the previously
unargued career offender enhancement that was irrelevant at the
first sentencing.

                                 -14-
should not have been able to argue that Dávila was a career

offender for the first time at his second sentencing.                    He also

points out that Ticchiarelli is not entirely on all-fours with the

facts of his case, because Ticchiarelli recognized the ability of

a defendant -- not the government -- to present new facts and

argument at resentencing.           Moreover, the sentencing judge in

Ticchiarelli      had   already    issued    a   final    ruling    against    the

defendant's position prior to the first sentencing, while there

were no such final rulings against the application of the career

offender enhancement in this case.           See Ticchiarelli, 171 F.3d at

33.

            Ultimately, we find none of these distinctions persuasive

given the particular facts of this case.                 As an initial matter,

Bell is readily distinguishable.              In that case, the defendant

argued successfully during his first appeal that the nature of his

prior convictions called for sentencing under the Armed Career

Criminal Act (the "ACCA") and not the career offender guideline.

Bell, 988 F.2d at 249. At his resentencing, however, the defendant

attempted to reverse his position, arguing for the first time that

the ACCA should not apply.          Id. at 249-50.          The district court

refused to allow the new argument, and on Bell's second appeal, we

affirmed    the   district   court's       finding   that    the    mandate   rule

prevented    relitigation     of     the     issue   where     no    exceptional

circumstances applied and the issue had been previously agreed upon


                                     -15-
and decided in the case.           Id. at 252.      Here, in contrast, the

government is not arguing in contravention of its previously

asserted position.      Additionally, it has explained its failure to

present the career offender evidence at the first sentencing, and

it has provided credible evidence to support the enhancement.

              As for Dávila's arguments that Ticchiarelli allows only

a defendant to introduce new evidence and that it ought not apply

to the government or in the absence of a final order of the

district court, we cannot agree.             First, Dávila ignores the fact

that Ticchiarelli cites with approval a Second Circuit case that

held   that    the   government    could     introduce   a    new    argument   at

resentencing when it lacked incentive to introduce the argument at

the initial sentencing.        171 F.3d at 33 (citing Atehortva, 69 F.3d

at 684-85).     Second, given the mandatory nature of a life sentence

under § 3559, the district court's ruling on the subject prior to

hearing   any     Guidelines      arguments    served    as    the    functional

equivalent of the prior ruling in Ticchiarelli, as it rendered all

other potential alternative arguments as to applicable Guidelines

irrelevant.

              In United States v. Montero-Montero, 370 F.3d 121, 124

(1st Cir. 2004), decided a full five years after Ticchiarelli, we

held there was insufficient record support for the special skills

adjustment imposed by the district court at the defendant's initial

sentencing.      Nevertheless, we held that the district court could


                                      -16-
allow the parties to develop the record further at resentencing to

determine whether the adjustment was warranted.                     Id.     As we

explained, the case did not involve an enhancement that the

government had sought at the initial sentencing hearing and simply

failed to support adequately.          Id.    Rather, the district court had

determined    sua      sponte   that   a     special    skills   adjustment   was

warranted without any such request by either party.                Id.    In those

circumstances, we held that our usual concerns about the government

getting a second bite at the apple did not apply, and the district

court could properly conduct additional factfinding regarding the

enhancement at resentencing.           Id.

             Here, as in Montero-Montero, we find that this is "not a

case where the government asked for the enhancement but failed to

adduce sufficient proof for its imposition." Id. In fact, neither

party so much as mentioned the existence of the career offender

enhancement prior to the sentencing judge's sua sponte decision to

announce the enhancement's applicability.               The district court then

went on to render the enhancement moot by sentencing Dávila in

accordance    with     the    "three   strikes"    statute.       Applying    the

Ticchiarelli rule to the facts of this case, we find that the

government did not waive its career offender argument by failing to

advance it at the initial sentencing hearing when it lacked the

incentive    to   do    so.     Our    reversal    of    the   district   court's

application of the "three strikes" statute invalidated a mandatory


                                       -17-
sentence of life imprisonment, thereby making the career offender

enhancement newly relevant at resentencing.      In the absence of any

express limitations on our mandate, the district court acted well

within its discretion by permitting the parties to introduce new

evidence   on   the    subject   of   the   enhancement   at   Dávila's

resentencing.

           As a final matter, we consider Dávila's argument that we

ought to follow the lead of our sister circuits and find that the

interests of fairness and judicial economy prevent the government

from obtaining too many bites at the sentencing apple. Our failure

to do so, he contends, will provide the government with a blank

check to take as many passes at sentencing as necessary to produce

the desired result.8

           In support of this view, Dávila directs us to opinions

from our sister circuits, pointing out instances in which an

appellate court expressly limited the scope of remand on the basis

of the government's failure to meet its burden at the initial

sentencing. See, e.g., United States v. Gammage, 580 F.3d 777, 779



8
    To the extent that Dávila seeks to invoke generally the
constitutional prohibition against double jeopardy, we note that
such principles are entirely inapplicable to the situation at hand,
which involves resentencing a defendant to a lesser sentence after
the defendant's successful appeal, and not repeated efforts to
convict a defendant for a given offense.     See United States v.
Pimienta-Redondo, 874 F.2d 9, 16 (1st Cir. 1989) (en banc)
("[N]either appellate review of sentences nor increases after
appeal will ordinarily implicate double jeopardy considerations."
(citations omitted)).

                                  -18-
(8th Cir. 2009) ("Because the government was clearly on notice that

it was required to prove up [the defendant's] convictions before he

would be subject to the enhancement at issue, we direct the

district court on remand to resentence [the defendant] based on the

record already before it.").        He also directs our attention to

discussions of the government's obligation to make its case the

first time around.     See, e.g., United States v. Dickler, 64 F.3d

818, 832 (3d Cir. 1995) ("[W]here the government has the burden of

production and persuasion . . . its case should ordinarily have to

stand or fall on the record it makes the first time around.             It

should not normally be afforded a second bite at the apple."

(internal quotation marks and citation omitted)).

             Without a doubt, Dávila is correct insofar as he argues

that no party -- including the government -- is entitled to an

unlimited number of opportunities to seek the sentence it desires.

This basic proposition is already well-established in this circuit.

See, e.g., Connell, 6 F.3d at 30 ("In the interests of both

consistency and judicial economy, . . . litigants should not

ordinarily be allowed to take serial bites at the appellate

apple.").    As we have previously recognized, in "a case where the

government    asked   for   [an]   enhancement   but   failed   to   adduce

sufficient proof for its imposition . . . there would not likely be

reason to permit a second bite at the apple." Montero-Montero, 370

F.3d at 124.


                                    -19-
            Here, however, the government did not seek to introduce

at resentencing additional evidence to bolster its failed "three

strikes" statute argument, or to support a career offender argument

it had presented unsuccessfully at the first sentencing, either of

which   would   have   constituted    a    second   bite    at   the    apple   in

violation of the mandate rule. See Whren, 111 F.3d at 959 ("[U]pon

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.").           Rather, it presented evidence to

support an enhancement -- previously announced sua sponte by the

district court and not in response to a request from the government

-- that was made newly relevant by this court's reversal of a

mandatory    life   sentence.    Cf.      Atehortva,   69    F.3d      at   684-85

(allowing consideration of new grounds for an enhancement at

resentencing that were not previously addressed by the government

due to the automatic application of the statutory maximum at the

first sentencing); United States v. Johnson, 378 F.3d 230, 241 (2d

Cir. 2004) ("[T]he issue of other enhancements was put aside, owing

to the murder enhancement, and became newly relevant only upon

remand.").      And although Dávila seeks to frame the issue as one

unfairly permitting the government latitude denied to a defendant,

in truth, our remand allowed the district court to consider new

evidence or argument relating to the newly relevant career offender

enhancement as produced by either party.


                                     -20-
          Neither does Dávila's appeal to judicial economy do him

any favors.    Our waiver doctrine ensures that a party must present

all relevant arguments before the district court in the first

instance to avoid waiver.        Our decision today does nothing to

undermine this generally applicable rule.      The narrow Ticchiarelli

exception applies only in instances where a previously irrelevant

argument becomes newly relevant as a consequence of an appellate

decision; it does nothing to help a litigant who fails to present

relevant evidence or argument below. In this way, the Ticchiarelli

exception acts itself as a safeguard of judicial economy.          It

guards against the creation of an "irrational" system in which

litigants would be forced to litigate every conceivable sentencing

issue at their hearing "even though irrelevant to the immediate

sentencing determination in anticipation of the possibility that,

upon remand, the issue might be relevant."     Ticchiarelli, 171 F.3d

at 32 (quoting United States v. Jennings, 83 F.3d 145, 151 (6th

Cir. 1996)).      We are thus confident that our decision today

promotes rather than undermines judicial economy.

                          III.    Conclusion

          In sum, the district court did not err by considering at

resentencing the newly relevant evidence of Dávila's June 1993

conviction.    Neither waiver nor the scope of remand precluded such

consideration.    As Dávila's challenge on appeal goes only to the

propriety of the court's consideration of such evidence, and he


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does not otherwise contest the application of the career offender

enhancement at resentencing, we need go no further.9   Accordingly,

we affirm.

             AFFIRMED.




9
   As a final matter, we note that Dávila flagged in his brief a
potential instructional error as to Count Two. He argues that
although he was indicted and sentenced for having brandished a
firearm, the jury made no specific finding as to brandishing, which
constitutes a violation of Alleyne v. United States, 133 S. Ct.
2151 (2013). Both in his brief and at argument, however, Dávila
flatly conceded that he did not preserve his claim by objecting at
trial or sentencing, and that his unpreserved Alleyne claim could
not survive plain-error review. Our case law makes clear that we
review such unpreserved Alleyne claims for plain error, United
States v. Delgado-Marrero, 744 F.3d 167, 184 (1st Cir. 2014), so in
light of Dávila's concession on that point, no further discussion
of the matter is required.

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