     Case: 14-10735        Document: 00513416022          Page: 1    Date Filed: 03/11/2016




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                       ______________                    United States Court of Appeals
                                                                                  Fifth Circuit


                                        No. 14-10735
                                                                                FILED
                                                                          March 11, 2016
                                       ______________
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                           Plaintiff - Appellee,
v.

MARK ANTHONY CLARK,
also known as Kevin Frank Carter,
                                                           Defendant - Appellant.

                                 ______________________
                    Appeal from the United States District Court
                         for the Northern District of Texas
                               ______________________

Before JONES and SMITH, Circuit Judges, and FITZWATER *, District Judge.


FITZWATER, District Judge:
      Defendant-appellant Mark Anthony Clark (“Clark”)—who is serving two
mandatory life sentences for drug offenses—appeals the district court’s 2014
amended judgment reflecting the dismissal in 1998 of one of five counts of
which Clark was convicted and sentenced, without conducting a resentencing
hearing and enabling Clark to rely on the Supreme Court’s decisions in
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, ___
U.S. ___, 133 S. Ct. 2151 (2013), to challenge the mandatory life sentences. We
affirm.



      *   District Judge of the Northern District of Texas, sitting by designation.
     Case: 14-10735      Document: 00513416022         Page: 2    Date Filed: 03/11/2016


                                      No. 14-10735

                                             I
       Clark was convicted by a jury in 1995 of the offenses of conspiracy to
possess with intent to distribute 100 grams or more of methamphetamine
(count 1); possession with intent to distribute 100 grams or more of
methamphetamine          (count    2);   possession     with     intent    to   distribute
amphetamine (count 3); using and carrying a firearm in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (count 4); and possession
of a firearm by a felon who was then a fugitive from justice (count 5). Because
Clark had three prior convictions for felony drug offenses that had become
final, 1 he was sentenced to mandatory terms of life imprisonment on counts 1
and 2. He was also sentenced to 235 months’ imprisonment on count 3, 60
months’ imprisonment on count 4, and 120 months’ imprisonment on count 5.
The district court ordered the sentences on counts 1, 2, 3, and 5 to run
concurrently with one another, and the sentence on count 4—the § 924(c)(1)
conviction—to run consecutively to the sentences on all other counts.
       Clark appealed, challenging, inter alia, his § 924(c)(1) conviction on
count 4 on the basis of the Supreme Court’s intervening decision in Bailey v.
United States, 516 U.S. 137 (1995). We affirmed Clark’s convictions on counts
1, 2, 3, and 5. United States v. Clark, 1998 WL 127844, at *1 (5th Cir. Mar. 10,
1998) (per curiam) (unpublished opinion) (“Clark I”).                  We reversed his
conviction on count 4 and remanded for a new trial on the “carry” prong of
§ 924(c)(1), holding that “[a]lthough the evidence may support Clark’s
conviction under the ‘carry’ prong of § 924(c)(1), . . . the jury may have rendered



       1 The government filed an information charging, inter alia, that Clark was subject to
a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A) with reference to counts 1 and 2
because he committed the offenses alleged in those counts after having been convicted of
three prior felony drug offenses.



                                             2
    Case: 14-10735     Document: 00513416022     Page: 3   Date Filed: 03/11/2016


                                  No. 14-10735

a guilty verdict because of the liberal pre-Bailey instructions on what
constituted ‘use’ of a firearm in relation to drug trafficking.” Id. We affirmed
Clark’s conviction on count 4 in all other aspects, stating, in pertinent part:
“Clark’s conviction on this count [count 4] is REVERSED.             The case is
REMANDED to the district court for a new trial on the ‘carry’ prong of the
statute. In all other aspects, Clark’s conviction is AFFIRMED.” Id. (citation
omitted).
      On remand, the district court set the case for trial. The government
moved under Fed. R. Crim. P. 48 to dismiss count 4 rather than retry Clark on
that count, citing the length of the sentences imposed on counts 1, 2, 3, and 5.
The district court granted the motion and dismissed count 4 by order on May
18, 1998. The district court did not conduct a resentencing hearing on the
remaining counts that were affirmed on appeal, or file an amended judgment.
      On March 15, 1999, within one year of the date the district court filed its
order dismissing count 4, Clark filed a motion for habeas corpus relief under
28 U.S.C. § 2255, which the district court denied. From 1999 to 2014, Clark
initiated a number of unsuccessful collateral attacks on his conviction: the
§ 2255 motion; a request to this court for a certificate of appealability, which a
judge of this court denied; a “Petition for Writ of Coram Nobis/Vobis, Audita
Querela, Mandamus, to Recall the Mandate, and for All Other Extraordinary
Relief for which Petitioner is entitled,” denied by the district court, case
dismissed, and affirmed by this court; a Fed. R. Civ. P. 60(b) motion, which the
district court construed as a successive § 2255 motion and denied, and as to
which a judge of this court denied a certificate of appealability; and a motion
for authorization to file a § 2255 motion based on Alleyne v. United States and
Rosemond v. United States, ___ U.S. ___, 134 S. Ct. 1240 (2014), which we
denied.


                                        3
    Case: 14-10735    Document: 00513416022    Page: 4   Date Filed: 03/11/2016


                                No. 14-10735

      In May 2014, nearly 16 years after his convictions on counts 1, 2, 3, and
5 were affirmed and count 4 was dismissed, Clark filed in the district court a
“Motion to Be Orally Resentenced and to Allow the New Oral Sentencing
Proceedings Reflect the New Written Judg[]ment.” Clark for the first time
complained that he had yet to be resentenced to reflect a new oral and new
written judgment and sentence. He maintained that he was entitled to be
present when the district court orally resentenced him; that his presence and
the presence of counsel were needed to determine any post-sentence conduct
that might lower his sentence under the sentencing package once the district
court orally vacated count 4 from the sentencing package; and that his
presence was necessary so that he could make any objections required to be
made at the new oral sentencing. Clark also requested that he be informed of
his right to appeal from the new oral and new written judgment, and he
requested a new presentence report (“PSR”) and a new sentencing hearing with
constitutional representation, so that count 4 could be orally removed from the
sentencing package and the written judgment would reflect this change.
      The district court granted Clark’s request to enter an amended judgment
reflecting the dismissal of count 4, but it concluded that no new sentencing
hearing was required or needed. The district court reasoned:
            Defendant’s sentence will not change in relation to the
            other counts that were affirmed by the Fifth Circuit.
            Although Defendant contends that he is entitled to be
            present for the pronouncement of a new oral sentence,
            precedent in the circuit states that he is not so
            entitled. Here, the Judgment is being amended to
            reflect the dismissal of Count 4. The modification to
            the judgment does not result in a change that is more
            onerous, and Defendant’s presence is not required to
            correct the judgment.




                                      4
    Case: 14-10735   Document: 00513416022      Page: 5    Date Filed: 03/11/2016


                                No. 14-10735

                  Finally, Defendant requests that he be informed
           of his appellate rights. The Court makes the finding
           that because the convictions on the remaining counts
           have already been affirmed by the United States Court
           of Appeal[s] for the Fifth Circuit “in all other aspects,”
           any appeal on those grounds would be futile and not
           taken in good faith.

June 12, 2014 Order (citations omitted).

     The district court entered an amended judgment on June 12, 2014,
ordering, in pertinent part: “[t]he sentence imposed on September 1, 1995,
having been remanded solely as to Count 4 by the Fifth Circuit, the Judgment
is amended as follows: Count 4 dismissed on Motion by the Government on
05/15/1998 and Order by the Court on 05/18/1998.”         In the imprisonment
portion, the amended judgment ordered:
                  The defendant is hereby committed to the
           custody of the United States Bureau of Prisons to be
           imprisoned for a term of Life imprisonment on Count
           1; Life imprisonment on Count 2; 235 months on Count
           3; and 120 months on Count 5. All of Counts 1, 2, 3,
           and 5 are to run concurrently; and 60 months on Count
           4 to be served consecutively to any other term of
           imprisonment. (Count 4 dismissed on Motion by the
           Government on 05/15/1998 and Order by the Court on
           05/18/1998.)

Am. Judg. 2 (emphasis omitted). This appeal followed.

                                       II
     Clark contends that the district court denied him the right to counsel, to
be present for sentencing, and to be heard through allocution when it entered
the amended judgment without conducting an oral resentencing at which
Clark was present and represented by counsel. He maintains that the district



                                       5
    Case: 14-10735    Document: 00513416022     Page: 6   Date Filed: 03/11/2016


                                 No. 14-10735

court conducted a summary resentencing proceeding that violated Rules 43
and 32 of the Federal Rules of Criminal Procedure, his Sixth Amendment
rights, and his Fifth Amendment due process rights. Clark also posits that he
is entitled to challenge his life sentences on counts 1 and 2, because the law of
the case doctrine is subject to an exception when there has been an intervening
change of law by a controlling authority, and the Supreme Court’s intervening
decision in Apprendi—decided after this court’s decision in 1998 and before the
entry of the amended judgment in 2014—represents such a change.
      The government responds that Clark was not entitled to a hearing at
which he was present, represented by counsel, and had the opportunity to
allocute, because the district court when entering the amended judgment did
not resentence Clark, it merely modified the existing sentence to reflect the
dismissal of count 4 and the deletion of the corresponding sentence. The
government posits that the district court was not obligated to resentence Clark
on counts 1, 2, 3, and 5 because Clark I and the parties’ manifested
understanding of it confirmed that this court affirmed Clark’s convictions and
sentences on counts 1, 2, 3, and 5, and the sentence on count 4 was independent
of the other counts and not the product of a sentencing package.            The
government also contends that the amended judgment did not require
resentencing because the district court was imposing a less onerous sentence
on the counts that had been affirmed. Alternatively, the government asserts
that the entry of the amended judgment was a ministerial act to memorialize
the sentences previously formulated without objection. It maintains that, if
this court reaches the Apprendi argument, Clark cannot establish any effect
on his substantial rights.
      Clark’s appeal presents two issues: first, whether when the district court
entered the amended judgment, Clark was entitled to a resentencing hearing


                                       6
    Case: 14-10735     Document: 00513416022    Page: 7   Date Filed: 03/11/2016


                                 No. 14-10735

at which he was present, represented by counsel, and had the opportunity to
be heard; and, second, whether this court’s reversal and remand of Clark’s
conviction and sentence on count 4 entitled Clark to challenge anew at a
resentencing hearing his sentences on other counts on remand.
                                      III
      We turn first to the question whether Clark was entitled to a
resentencing hearing at which he was present, represented by counsel, and
had the opportunity to be heard. We decide this question de novo. See, e.g.,
United States v. Lampton, 158 F.3d 251, 255 (5th Cir. 1998) (reviewing de novo
defendants’ contention that their absence at hearing on motion for new trial
violated Sixth Amendment and Rule 43).
                                       A
      “[A] defendant’s presence in court is not required every time judicial
action is taken to correct a sentence.” United States v. Erwin, 277 F.3d 727,
730 (5th Cir. 2001).
            A defendant’s right to be present when the district
            court alters his sentence depends on the type of action
            the district court is taking. If the district court is
            imposing a new sentence after the original sentence
            has been set aside, the defendant is entitled to be
            there. However, a defendant is not entitled to be
            present when the district court merely modifies an
            existing sentence.

United States v. Patterson, 42 F.3d 246, 248-49 (5th Cir. 1994) (per curiam)
(citations omitted).
            We have long recognized the distinction between
            proceedings in the district court that modify an
            existing sentence and those that impose a new
            sentence after the original sentence has been set aside.
            In the former instance, the presence of the defendant



                                       7
    Case: 14-10735       Document: 00513416022    Page: 8   Date Filed: 03/11/2016


                                   No. 14-10735

               usually is not required, unless the modification makes
               the sentence more onerous. In the latter instance,
               however, we have consistently held that a defendant’s
               rights to be present and to allocute at sentencing,
               which are of constitutional dimension, extend to
               resentencing proceedings.

United States v. Moree, 928 F.2d 654, 655-56 (5th Cir. 1991) (footnotes
omitted).
                                         B
         We hold that when the district court entered the amended judgment, it
modified Clark’s existing sentence in a manner that was not more onerous;
that is, it corrected a discrete portion of the sentence that it had already
rendered, that had been reversed on appeal, and the underlying count for
which had been dismissed on the government’s motion on remand. The district
court did not impose a new sentence after the original sentence had been set
aside.
         That this is what occurred here is illustrated by Patterson and Erwin. In
Patterson defendant Cecil Ray Patterson (“Patterson”) was convicted of
possession of a firearm as a felon, in violation of 18 U.S.C. § 922(g), and
carrying a firearm in connection with a crime of violence, in violation of 18
U.S.C. § 924(c)(1). Patterson, 42 F.3d at 247. The district court found that
Patterson qualified as a career offender and sentenced him to 366 months’
imprisonment on the § 922(g) conviction, and a consecutive term of 60 months’
imprisonment on the § 924(c)(1) conviction. Id. at 247-48. On appeal, we
vacated his sentence and remanded for a determination of whether his prior
convictions constituted crimes of violence. Id. at 248. On remand, the district
court conducted a resentencing, held that Patterson did not qualify as a career
offender, and resentenced Patterson as an armed career criminal. The district



                                         8
    Case: 14-10735    Document: 00513416022     Page: 9   Date Filed: 03/11/2016


                                 No. 14-10735

court entered an order and judgment on resentencing that reduced Patterson’s
sentence to 327 months’ imprisonment on the § 922(g) conviction and did not
change the remainder of the sentence. Id. Shortly after resentencing, the
district court filed a corrected order and judgment on resentencing that vacated
Patterson’s § 924(c)(1) conviction. Except for deleting all reference to the
§ 924(c)(1) conviction, the corrected order and judgment was identical to the
original order and judgment. Id.
      Patterson appealed the corrected order, arguing, inter alia, that the
district court erred by not holding another hearing before entering the
corrected order and judgment, because he was entitled at the hearing to object
to the PSR before the district court entered the corrected order and judgment.
Id. We disagreed, explaining that, in the corrected order and judgment, the
district court was not imposing a new sentence. Id. at 249. Instead, it was
correcting a discrete portion of the order and judgment that it had already
rendered. The order and judgment on resentencing had not been vacated or set
aside. The sole change that the corrected order made was to vacate Patterson’s
§ 924(c)(1) conviction and remove from the sentence all reference to that
conviction.   Accordingly, we concluded that Patterson had no right to be
present or to be heard before the district court entered the corrected order. Id.
      In Erwin defendant Bonnie Burnette Erwin (“Erwin”) was convicted of
multiple offenses related to drug activities, including conspiracy and engaging
in a continuing criminal enterprise (“CCE”). Erwin, 277 F.3d at 729. The
district court sentenced Erwin to a term of life imprisonment on the CCE
conviction plus 120 years on the other substantive offenses and ordered that
the sentences run consecutively.     Id.   On direct appeal, we reversed his
conviction on a conspiracy count. Because we concluded that the conspiracy
charge was a lesser-included offense of a CCE, and Erwin had already been


                                       9
   Case: 14-10735     Document: 00513416022      Page: 10   Date Filed: 03/11/2016


                                  No. 14-10735

convicted of a CCE offense, we held that Erwin could not be retried for
conspiracy. We affirmed his conviction in all other respects. Id. On remand,
the government moved to dismiss the conspiracy charge, and the district court
amended the judgment, dismissing the conspiracy count with prejudice. Id.
      Thereafter, during an eleven-year period, Erwin filed numerous,
unsuccessful motions seeking to set aside his convictions or obtain a new trial.
Id. Eventually, he filed a motion requesting that the district court amend the
original judgment and commitment order to reflect that his conspiracy count
had been dismissed by the Fifth Circuit. Id. at 730. In response, the district
court filed an amended judgment that deleted any reference to the conspiracy
conviction and reduced Erwin’s sentence to life imprisonment for the CCE
conviction plus 105 years on the remaining offenses. Id.
      Erwin appealed the amended judgment. While the appeal was pending,
the Supreme Court held in Richardson v. United States, 526 U.S. 813 (1999),
that to convict a defendant of a CCE violation, the jury must unanimously
agree as to which specific violations make up the “continuing series” and
“violations” underlying the CCE offense. Id. at 816. Thereafter, Erwin filed a
motion for new trial in the district court, and, later, through appointed counsel,
he filed a memorandum of law in support of a resentencing and his motion for
new trial. Erwin argued that the district court deprived him of his right to due
process by entering the amended judgment without providing him an
appropriate resentencing hearing and notice. After the district court denied
Erwin's motion for a new trial, his appeal from that order was consolidated
with his earlier appeal from the amended judgment. Id.
      We affirmed Erwin’s conviction and sentence.           Regarding Erwin’s
assertion that he was deprived of due process when the amended judgment
was entered without a resentencing hearing and notice, we began by


                                       10
   Case: 14-10735     Document: 00513416022        Page: 11   Date Filed: 03/11/2016


                                    No. 14-10735

addressing the requirements of Rule 35. Id. We explained that Rule 35(a)
required a court to correct a sentence that was determined on appeal to have
been imposed in violation of the law. We also concluded that a defendant’s
presence in court was not required every time judicial action was taken to
correct a sentence. Although Rule 43(a) provided that the defendant must be
present when the sentence was imposed, the defendant’s presence was not
required at a reduction of sentence under Rule 35. Id. at 730-31. We then
referred to our decision in United States v. Pineda, 988 F.2d 22 (5th Cir.1993),
in which we held that this exception applied to a downward correction of an
illegal sentence under Rule 35(a). Id. at 731 (citing Pineda, 988 F.2d at 23).
We quoted our conclusion in Pineda that “where the entire sentencing package
has not been set aside, a correction of an illegal sentence does not constitute a
resentencing requiring the presence of the defendant, so long as the
modification does not make the sentence more onerous.” Id. (quoting Pineda,
988 F.2d at 23).
      Turning to the district court’s conclusion that Erwin was not entitled to
a resentencing hearing when the court was not imposing a new sentence, but
was instead simply modifying an existing sentence, we quoted our holding in
Patterson that “‘[a] defendant’s right to be present when the district court
alters his sentence depends on the type of action the district court is taking.’”
Id. (quoting Patterson, 42 F.3d at 248) (alteration in original).         Based on
Patterson, which, in turn, cited Moree, we explained that “[a] defendant is
entitled to be present when the district court is imposing a new sentence after
the original sentence has been set aside; however, a defendant does not have a
right to be present when his sentence is merely modified by the district court.”
Id. Applying these precedents to Erwin’s case, we concluded that his due
process rights were not violated.


                                        11
      Case: 14-10735   Document: 00513416022      Page: 12   Date Filed: 03/11/2016


                                   No. 14-10735

              Here, the district court modified Erwin’s sentence in
              accordance with this Court’s reversal of the conspiracy
              count and the affirmation of the district court decision
              in all other respects. Erwin’s conviction was reduced
              from life plus 120 years to life plus 105 years. We have
              found that such a downward correction of an illegal
              sentence does not constitute resentencing requiring
              the presence of a defendant. Thus, Erwin was not
              entitled to a resentencing hearing, and therefore, his
              due process rights were not violated.

Id.

        As in Patterson and Erwin, in the instant case the amended judgment
simply modified Clark’s sentence in accordance with this court’s reversal of
count 4, our affirmance of Clark’s convictions and sentences on the remaining
counts, and the dismissal of count 4 on remand based on the government’s
motion. On the direct appeal from Clark’s convictions and sentence, we held
that “with one exception, no reversible error was committed.” Clark I, 139 F.3d
899, at *1. We rejected Clark’s challenge to the denial of his motion to suppress
on the basis that the warrantless stop and search of his truck was supported
by probable cause, id.; his challenge to the sufficiency of the evidence to support
his conviction for conspiracy, id.; his challenge to the district court’s failure to
sequester the witnesses because he failed to establish plain error, id.; his
suggestion that the government failed to comply with § 851(a), id.; and his
contention that the district court failed to follow the procedures mandated by
§ 851(b) because, if true, it would amount only to harmless error, id. We
concluded, however, that Clark’s conviction on count 4—a violation of
§ 924(c)(1)—must be reversed. Id. Citing our decision in United States v.
Wilson, 116 F.3d 1066 (5th Cir. 1997), we held that “[a]lthough the evidence
may support Clark’s conviction under the ‘carry’ prong of § 924(c)(1), [the



                                        12
   Case: 14-10735    Document: 00513416022      Page: 13   Date Filed: 03/11/2016


                                 No. 14-10735

conviction could not stand] because the jury may have rendered a guilty verdict
because of the liberal pre-Bailey instructions on what constituted ‘use’ of a
firearm in relation to drug trafficking.”     Id. (bracketed material added).
Regarding count 4, we held that “Clark’s conviction on this count is
REVERSED. The case is REMANDED to the district court for a new trial on
the ‘carry’ prong of the statute. In all other aspects, Clark’s conviction is
AFFIRMED.”       Id. (citation omitted).    We then concluded our opinion:
“AFFIRMED IN PART; REVERSED AND REMANDED IN PART.” Id.
      It is apparent that in Clark I we affirmed Clark’s convictions and
sentences on counts 1, 2, 3, and 5, and we reversed only his conviction on count
4 and remanded for a new trial on that count alone. There was no retrial
because the government moved to dismiss that count rather than retry Clark.
When the district court granted Clark’s motion in 2014 and entered the
amended judgment eliminating the sentence on count 4, it was correcting an
illegal sentence by eliminating a conviction on a count that had been reversed
on appeal and later dismissed on the government’s motion. The district court
did not resentence Clark.
      Because the entry of the amended judgment was not the imposition of a
new sentence, and the sentence modification did not make the sentence more
onerous, Clark’s presence was not required under Rule 43, and Clark was not
entitled to a hearing at which he was present, represented by counsel, and had
the opportunity to be heard.




                                      13
    Case: 14-10735        Document: 00513416022          Page: 14      Date Filed: 03/11/2016


                                        No. 14-10735

                                               C

       Clark attempts to distinguish Moree, Patterson, and Erwin 2 on the basis
that, at the time those cases were decided, it was possible under Rule 43 to
correct a sentence when required by an appellate court, and to sentence the
defendant in absentia, at least when the sentence was reduced. Although the
basis for this argument evolves from Clark’s opening brief and reply brief to
his Rule 28(j) letter, he ultimately posits that the pre-1998 version of Rule 43
authorized in absentia action when a remand was made under Rule 35(a), thus
distinguishing Moree, Patterson, and Erwin from Clark’s case, to which a
different version of Rule 35 applies. 3
       Clark’s attempt to distinguish Moree, Patterson, and Erwin is misplaced.
Although in Moree we noted the potential confusion arising from the interplay
between amended Rule 35 and Rule 43, we found it unnecessary to resolve the
possible problems arising from this confusion because our precedents provided
the answer. Moree, 928 F.2d at 655-56 (stating that “[f]ortunately, we need
resolve none of [the potential problems] here” because                      “[w]e have long
recognized the distinction between proceedings in the district court that modify
an existing sentence and those that impose a new sentence after the original
sentence has been set aside,” and holding that “[i]n the former instance, the
presence of the defendant usually is not required, unless the modification


       2He also attempts to distinguish United States v. Rainwater, 317 Fed. Appx. 431 (5th
Cir. 2009) (per curiam), an unpublished opinion of this court, on the same basis.

       3 In his opening brief, Clark relied on the pre-2002 version of Rule 35 to distinguish
Moree, Patterson, and Erwin, although he cited the 1998 amendment to Rule 43 in a footnote.
Likewise, in his reply brief, he relied on the pre-2002 version of Rule 35, again citing the 1998
amendment to Rule 43 in a footnote. In his Rule 28(j) letter, however, in an apparent attempt
to overcome the force of the government’s Rule 28(j) letter, Clark refines his position to rely
primarily on the pre-1998 version of Rule 43.



                                              14
   Case: 14-10735         Document: 00513416022          Page: 15      Date Filed: 03/11/2016


                                        No. 14-10735

makes the sentence more onerous”). In other words, our holding in Moree did
not turn on the particular version of Rule 35.                  Clark cannot distinguish
Patterson on this basis because that decision did not involve Rule 35 or 43. And
although Erwin cited and quoted Rules 35 and 43, it relied more on the
holdings of Pineda and Patterson than it did the particular version of Rule 35
or 43. See Erwin, 277 F.3d at 730-31.
      In his Rule 28(j) letter, Clark cites the Advisory Committee Note to the
1998 Amendment to Rule 43 to support his assertion that he had the right to
be present when the district court entered the amended judgment. But the
Advisory Committee Note confirms that the Committee viewed our opinion in
Moree as illustrating the proper distinction between a sentence modification
and a resentencing. See Rule 43 advisory committee’s note (1998 amendments)
(citing Moree). 4 Nothing in the 1998 amendment to Rule 43(c)(4) undercuts



      4   The Advisory Committee Note stated, in pertinent part:

                        The amendment to Rule 43(c)(4) is intended to address
               two issues. First, the rule is rewritten to clarify whether a
               defendant is entitled to be present at resentencing proceedings
               conducted under Rule 35. As a result of amendments over the
               last several years to Rule 35, implementation of the Sentencing
               Reform Act, and caselaw interpretations of Rules 35 and 43,
               questions had been raised whether the defendant had to be
               present at those proceedings. Under the present version of the
               rule, it could be possible to require the defendant’s presence at a
               “reduction” of sentence hearing conducted under Rule 35(b), but
               not a “correction” of sentence hearing conducted under Rule
               35(a). That potential result seemed at odds with sound practice.
               As amended, Rule 43(c)(4) would permit a court to reduce or
               correct a sentence under Rule 35(b) or (c), respectively, without
               the defendant being present. But a sentencing proceeding being
               conducted on remand by an appellate court under Rule 35(a)
               would continue to require the defendant’s presence. See, e.g.,
               United States v. Moree, 928 F.2d 654, 655-656 (5th Cir. 1991)
               (noting distinction between presence of defendant at



                                              15
    Case: 14-10735      Document: 00513416022        Page: 16     Date Filed: 03/11/2016


                                     No. 14-10735

the distinction we drew in Moree, or in Patterson or Erwin, both of which cite
Moree. This means that these precedents cannot be distinguished on the basis
that they were decided when the pre-1998 version of Rule 43 was in effect.
      Moreover, we note that the Fourth Circuit cited our opinion in Erwin
when deciding a case in which the original sentencing and the entry of the
amended judgment (without resentencing) both took place after the 1998
amendment to Rule 43. See United States v. Hadden, 475 F.3d 652, 667, 668
(4th Cir. 2007) (citing Erwin, 277 F.3d at 731). Although Hadden decided
questions in the context of a § 2255 habeas petition and is distinguishable on
that basis, it is instructive nonetheless because of its reasoning and its
conclusion that Rules 32 and 43 did not apply to Hadden’s case since the
district court did not conduct a resentencing. And Hadden, like the instant
case, addressed whether resentencing was required after a § 924(c) conviction
and consecutive sentence were vacated and the other counts and sentences
were left undisturbed.


                                           D

      Clark also maintains that the district court was required to resentence
him because his aggregate sentence on all counts—the “sentencing package”—
was “unbundled” when we reversed his conviction on count 4 and remanded
for a new trial on the “carry” prong. We disagree.
      In some cases, when we reverse convictions or sentences on fewer than
all counts, the aggregate sentence must be unbundled, and the defendant must


             modification of sentencing proceedings and those hearings that
             impose new sentence after original sentence has been set aside).

Rule 43 advisory committee’s note (1998 Amendments).




                                           16
   Case: 14-10735    Document: 00513416022      Page: 17   Date Filed: 03/11/2016


                                 No. 14-10735

be resentenced on all counts. See, e.g., United States v. Bass, 104 Fed. Appx.
997, 1000 (5th Cir. 2004) (per curiam). This occurs when the sentences or
counts are interrelated or interdependent—for example, when the reversal of
the sentence on one count necessarily requires the review of the entire
sentence. This is not the case here. Counts 1 and 2 carried mandatory life
sentences, and count 4 carried a mandatory minimum sentence that by statute
had to be imposed consecutively to the sentences on all other counts. See 18
U.S.C. § 924(c)(1). The district court ordered the sentences on counts 1, 2, 3,
and 5 to run concurrently with one another, but, as required by statute, it
ordered the sentence on count 4 to run consecutively to all other counts. On
appeal, we affirmed Clark’s convictions and sentences on all counts except
count 4. Our reversal of count 4 did not unbundle any sentencing package of
which count 4 was a part. Accordingly, the district court was not obligated to
resentence Clark on the basis that the sentencing package had become
unbundled.


                                      IV

      We now consider whether our reversal and remand of Clark’s conviction
and sentence on count 4 entitled Clark to challenge anew at a resentencing
hearing his sentences on other counts on remand. We review this question de
novo. See, e.g., United States v. Roussel, 705 F.3d 184, 201 (5th Cir. 2013)
(stating that Apprendi challenges to sentences are reviewed de novo); United
States v. Teel, 691 F.3d 578, 583 (5th Cir. 2012) (stating that this court
“review[s] de novo a district court’s application of the remand order, including
whether the law-of-the-case doctrine or mandate rule forecloses the district
court’s actions on remand.” (internal quotation marks and citation omitted));



                                      17
   Case: 14-10735     Document: 00513416022        Page: 18   Date Filed: 03/11/2016


                                    No. 14-10735

United States v. Carales-Villalta, 617 F.3d 342, 344 (5th Cir. 2010) (stating
that because issue concerned interpretation of scope of this court’s appellate
mandate, and “whether the law-of-the-case doctrine or mandate rule forecloses
the district court’s actions on remand,” it should be reviewed de novo).
                                         A
      Clark maintains that our reversal and remand of count 4 rendered his
sentences on counts 1, 2, 3, and 5 open to challenge on remand, and that,
because the district court did not convene a resentencing hearing or appoint
counsel to represent him, he was improperly precluded from relying on two
intervening Supreme Court decisions: Apprendi and Alleyne. According to
Clark, Apprendi and Alleyne are properly considered “intervening” because his
convictions on counts 1, 2, 3, and 5 were not yet final at the time these cases
were decided. The government responds that Clark was not resentenced on
remand; under the law of the case doctrine, the district court was not permitted
to revisit Clark’s sentences on counts 1, 2, 3, or 5; and both intervening cases
were decided long after Clark’s convictions became final in 1998, when the
district court dismissed count 4.
                                         B

      The law of the case doctrine prohibits a district court from reviewing or
deciding issues that have been decided on appeal, whether expressly or by
implication. Teel, 691 F.3d at 582. A district court is authorized on remand
only to review “those discrete, particular issues identified by the appeals court
for remand.” United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004); see also
United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998) (“The only issues
on remand properly before the district court are those issues arising out of the
correction of the sentence ordered by this court.”). The district court must



                                        18
   Case: 14-10735     Document: 00513416022     Page: 19    Date Filed: 03/11/2016


                                 No. 14-10735

“implement both the letter and the spirit of the appellate court’s mandate and
may not disregard the explicit directives of that court.”       United States v.
Matthews, 312 F.3d 652, 657 (5th Cir. 2002). The district court may exceed the
appellate mandate, however, when “there has been an intervening change of
law by a controlling authority.” Id. A defendant can challenge his sentence
based on an intervening change of law that has occurred before his conviction
is final. Griffith v. Kentucky, 479 U.S. 314, 316 (1987).
      Neither Apprendi nor Alleyne is reasonably considered intervening law
because neither case was decided until after Clark’s convictions and sentences
became final. On direct appeal, we affirmed his convictions and sentences on
counts 1, 2, 3, and 5, and remanded solely for a new trial on count 4 (charging
a violation of § 924(c)). Clark I, 139 F.3d 899, at *1. On remand, the district
court was only authorized to retry, or otherwise dispose of, count 4. Under the
law of the case doctrine, the district court was not authorized to entertain
challenges to Clark’s sentences on counts 1, 2, 3, and 5, considering that this
court had affirmed them on direct appeal. The district court granted the
government’s motion to dismiss count 4. When it dismissed count 4, Clark’s
convictions and sentences on counts 1, 2, 3, and 5 became final. The entry of
the amended judgment at that point would have been a ministerial act because
our affirmance of the convictions and sentences on 1, 2, 3, and 5 dictated the
sentences to be imposed on remand. See, e.g., Hall v. Moore, 253 F.3d 624, 627
(11th Cir. 2001) (quoting Golden v. Newsome, 755 F.2d 1478, 1483 n.9 (11th
Cir. 1985)) (“Obviously, where the precise sentence for a particular offense is
mandatorily fixed by law such that its imposition is merely a ministerial
ceremony, with no discretion to be exercised by the sentencing judge, the
absence of counsel at such a proceeding could not possibly be prejudicial.”).




                                       19
   Case: 14-10735     Document: 00513416022      Page: 20   Date Filed: 03/11/2016


                                  No. 14-10735

                                        C
      What transpired between 1998 and 2014 corroborates the finality of
Clark’s convictions and sentences on counts 1, 2, 3, and 5 in 1998. Clark
initiated several collateral attacks on the judgment under 28 U.S.C. § 2255. It
is a jurisdictional requirement of § 2255 that the conviction and sentence being
challenged are final. See, e.g., Jones v. United States, 453 F.2d 351, 352 (5th
Cir. 1972) (per curiam) (holding that collateral attack under § 2255 was
premature where direct appeal of defendant’s conviction was still pending).
And Clark filed his first habeas petition within one year of the date the district
court dismissed count 4, in an apparent attempt to comply with the applicable
one-year limitations period. See 28 U.S.C. § 2255(f) (providing that “1-year
period of limitation” applies to motions under § 2255).       Moreover, despite
Clark’s multiple attempts to obtain collateral relief from his convictions and
sentence, at no point until 2014, when Clark filed his motion to be resentenced,
did Clark, the government, the district court, or, for that matter, we question
whether Clark’s convictions and sentences were final.
      Accordingly, because Clark’s convictions and sentences became final
before Apprendi and Alleyne were decided, the law of the case doctrine
precluded Clark from relying on them to challenge his sentences on other
counts of which he had been convicted. He was not entitled to a resentencing
hearing before the district court entered the amended judgment so that he
could make Apprendi- and Alleyne-based challenges to the sentences on other
counts.
                                    *   *    *

      For the reasons explained, the amended judgment is AFFIRMED.




                                        20
