     Case: 18-50400      Document: 00514997113         Page: 1    Date Filed: 06/14/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                    No. 18-50400                          FILED
                                  Summary Calendar                    June 14, 2019
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

              Plaintiff-Appellee

v.

EMMANUEL EMIL BAILEY, also known as Emmanuel Bailey, also known as
Jermaine Jamal Lyons, also known as Mobban, also known as Young Mobban,

              Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:15-CR-148-1


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Emmanuel Emil Bailey pleaded guilty to transportation of an individual
in interstate commerce with the intent that such individual engage in
prostitution or sexual activity in violation of 18 U.S.C. § 2421. The district
court sentenced him above the advisory guidelines range to 84 months of
imprisonment and three years of supervised release.                 On appeal, Bailey’s



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 18-50400

appellate counsel moved to withdraw and filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967). Counsel subsequently withdrew the Anders
motion and filed a brief on the merits challenging four of the standard
conditions of supervised release. We vacated the conditions and remanded for
resentencing. United States v. Bailey, 697 F. App’x 270, 271 (5th Cir. 2017)
(per curiam) (unpublished). On remand, Bailey filed a motion to reconsider
the district court’s upward departure. 1 The district court denied the motion
and reimposed its original sentence, absent the four challenged conditions of
supervised release.
       Bailey now argues that the district court erred in failing to consider his
upward departure challenge at resentencing. He maintains that his “case
qualifies for a unique exemption” to the mandate rule because he raised this
argument in his pro se response to counsel’s Anders motion. Bailey concedes
that his counsel did not raise such a challenge in his merits brief.
       We review the district court’s application of our remand order de novo.
See United States v. Bazemore, 839 F.3d 379, 385 (5th Cir. 2016). “Under the
mandate rule, ‘[a] district court on remand “must 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. Teel, 691 F.3d 578, 583 (5th
Cir. 2012) (alteration in original) (quoting United States v. McCrimmon, 443
F.3d 454, 459 (5th Cir. 2006)).            “‘Additionally, pursuant to the “waiver


       1 The parties incorrectly refer to Bailey’s sentence as an upward departure; it is
instead an upward variance. See United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008)
(“This court recognizes three types of sentences: (1) ‘a sentence within a properly calculated
Guidelines range’; (2) ‘a sentence that includes an upward or downward departure as allowed
by the Guidelines’; and (3) ‘a non-Guideline sentence’ or a ‘variance’ that is outside of the
relevant Guidelines range.” (quoting United States v. Smith, 440 F.3d 704, 706-07 (5th Cir.
2006))). To the extent the parties refer to Bailey’s sentence as an upward departure, “those
arguments are not applicable and are construed as referencing the upward variance, where
possible.” United States v. Ramirez Gasca, 476 F. App’x 16, 17 (5th Cir. 2012) (per curiam)
(unpublished).


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                                  No. 18-50400

approach” to the mandate rule,’ ‘[a]ll other issues not arising out of this court’s
ruling and not raised before the appeals court, which could have been brought
in the original appeal, are not proper for reconsideration by the district court
below.’” Id. (alteration in original) (first quoting McCrimmon, 443 F.3d at 459;
then quoting United States v. Pineiro, 470 F.3d 200, 205 (5th Cir. 2006) (per
curiam)).
      The district court “implement[ed] both the letter and spirit of [our]
mandate” by limiting its review to the four challenged conditions of supervised
release. Id. Because Bailey’s upward variance challenge was not raised in his
original appeal, and could have been raised therein, the issue was waived and
not properly before the district court at resentencing. See id. at 583-84; United
States v. Griffith, 522 F.3d 607, 610-11 (5th Cir. 2008). In addition, contrary
to Bailey’s argument, he did not have a right to hybrid representation on
appeal. See United States v. Ogbonna, 184 F.3d 447, 449 n.1 (5th Cir. 1999)
(denying defendant’s motion to file a pro se brief when defendant’s counsel had
already filed a competent brief on his behalf); 5TH CIR. R. 28.6. Therefore, the
district court’s judgment on remand is AFFIRMED.




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