          Case: 13-15193   Date Filed: 06/24/2014   Page: 1 of 8




                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-15193
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 9:11-cr-80165-KLR-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus



ANES JOSEPH,

                                                        Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________


                             (June 24, 2014)
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Before HULL, PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Following a remand for resentencing, Anes Joseph appeals his total 63-

month sentence for offenses related to a conspiracy to smuggle firearms from the

United States into Haiti. After review, we affirm.

                           I. BACKGROUND FACTS

A.    Trial and Sentence

      In a five-count superseding indictment, Joseph was charged with conspiring

to buy and illegally transport firearms from the United States to Haiti, in violation

of 18 U.S.C. § 371 (Count 1); unlawfully transporting firearms, in violation of 18

U.S.C. §§ 922(e), 924(a)(1)(D) (Count 2); attempting to transport firearms to a

person residing outside the same state, in violation of 18 U.S.C. § 922(a)(5) (Count

3); providing false and fictitious information to a federally licensed firearms dealer

in relation to the acquisition of firearms, in violation of 18 U.S.C. § 922(a)(6)

(Count 4); and attempting to export firearms from the United States to Haiti (Count

5), violation of 18 U.S.C. § 554(a).

      After a jury trial, Joseph was found guilty on all counts. The district court

imposed a total 63-month sentence, consisting of 60-month sentences on Counts 1,

2, and 3, and 63-month sentences on Counts 4 and 5, all to be served concurrently.

B.    First Appeal and Remand



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       In Joseph’s first appeal, this Court affirmed Joseph’s convictions and

sentences on Counts 1, 2, 4, and 5. As to Count 3, the Court vacated Joseph’s

conviction and 60-month concurrent sentence because Count 3 failed to allege a

federal offense under 18 U.S.C. § 922(a)(5). See United States v. Joseph, 530 F.

App’x 911, 917 (11th Cir. 2013).1

       The Court rejected several sentencing arguments raised by Joseph. The

Court concluded, inter alia, that: (1) the district court had properly denied Joseph’s

request for a minor-role reduction; and (2) Joseph’s 63-months sentence, “imposed

at the lowest end of the guidelines range, was procedurally and substantively

reasonable.” Id. at 927-28. This Court specified that “even without Count 3, [it

could not] say that Joseph’s 63-month total sentence . . . was unreasonable.” Id. at

928.

       This Court remanded “for the district court to enter a corrected judgment.”

Id. In so doing, we noted that a new sentencing hearing was not required, as

follows:

             As shown by the calculations above, Count 3 did not affect
       Joseph’s guidelines calculations, and Joseph was given a reasonable
       sentence at the low end of the guidelines range. Thus, we do not
       require the district court to hold a new sentencing hearing. See, e.g.,
       United States v. McGarity, 669 F.3d 1218, 1270-71 (11th Cir. 2012)

       1
         The Court agreed with the parties that Count 3 of Joseph’s indictment alleged an attempt
to transfer firearms to an out-of-state resident, but that § 922(a)(5) prohibits only a completed,
and not an attempted, offense, and the indictment did not rely on any other federal statute
prohibiting an attempt. Joseph, 530 F. App’x at 917-18.


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       (vacating convictions and sentences on some counts of the
       defendants’ indictment, without requiring the district court to
       resentence those defendants). However, the district court does retain
       the discretion to have an additional sentencing hearing if it concludes
       the vacatur of Count 3 affects in any way its sentencing decision on
       the other counts.

Id. at 928 n.10.

C.     Amended Judgment on Remand

       On remand, the district court entered an amended judgment without

requesting a new presentence investigation report (“PSI”) or holding a hearing.

The amended judgment states that Joseph was found not guilty on Count 3. The

district court re-imposed a total prison term of 63 months, consisting of 60-month

sentences for Counts 1 and 2, and 63-month sentences for Counts 4 and 5, all to be

served concurrently.

                                     II. DISCUSSION

       On appeal, Joseph contends the district court abused its discretion and

violated Joseph’s due process rights by amending the judgment without ordering a

new PSI and holding a resentencing hearing. We disagree.2

       Although both the due process clause and Federal Rule of Criminal

Procedure 43(a)(3) give the defendant the right to be present at sentencing, that

       2
         We review de novo the district court’s compliance with this Court’s mandate from a
previous appeal. United States v. Amedeo, 487 F.3d 823, 829 (11th Cir. 2007). We review for
an abuse of discretion the district court’s exercise of the limited discretion left to it by our
mandate. Pelletier v. Zweifel, 987 F.2d 716, 718 (11th Cir. 1993). “We review for harmless
error claims that a defendant was entitled to be present at various stages of a criminal
proceeding.” United States v. Parrish, 427 F.3d 1345, 1346-47 (11th Cir. 2005).


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right does not extend to every instance of judicial action modifying a sentence.

See United States v. Parrish, 427 F.3d 1345, 1348 (11th Cir. 2005). Here, this

Court did not vacate the entire sentencing package on direct appeal, but instead

issued only a limited remand; Joseph’s 63-months sentence re-imposed on remand

was not more onerous. Given the particular circumstances here, Joseph was not

entitled to be present and allocute at a resentencing hearing. See United States v.

Tamayo, 80 F.3d 1514, 1522 (11th Cir. 1996) (concluding the district court did not

plainly err in not giving the defendant an opportunity to allocute because the

defendant’s entire sentencing package was not vacated on direct appeal and

remand was limited to consideration of a single sentencing issue); United States v.

Jackson, 923 F.2d 1494, 1497 (11th Cir. 1991) (“[W]here the entire sentencing

package has not been set aside, a correction of an illegal sentence [under Federal

Rule of Criminal Procedure 35] does not constitute a resentencing requiring the

presence of the defendant, so long as the modification does not make the sentence

more onerous.”); see also United States v. Taylor, 11 F.3d 149, 151-52 (11th Cir.

1994) (relying upon Jackson to conclude the defendant was entitled to allocute at

resentencing because district court granted the defendant’s 28 U.S.C. § 2255

motion, vacated the defendant’s sentence in its entirety, and held a resentencing

hearing).




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      In this case, this Court vacated only Joseph’s Count 3 conviction and

sentence and did not vacate his entire sentencing package. Further, the Court’s

remand was limited to “enter[ing] a corrected judgment.” The Court’s limited

mandate did not require the district court to hold a resentencing hearing. Rather,

the Court’s remand gave the district court the discretion to hold a hearing if it

concluded that the vacatur of Count 3 affected its sentencing decision on the other

counts. Stated another way, if the district court concluded that the vacatur of

Count 3 had no effect on its sentencing decisions as to Joseph’s other counts, the

court would not hold a resentencing hearing. Consistent with this Court’s

mandate, the district court, after concluding that the vacatur of Count 3 did not

undermine its sentencing determinations on the remaining counts, imposed the

same sentence without holding a hearing. Joseph was not required to be present at

a resentencing hearing before the district court could amend the judgment and re-

impose the same sentence.

      Joseph contends that: (1) the district court originally considered Joseph’s

conduct in Count 3 in denying his request for a minor-role reduction; (2) this Court

vacated Count 3; and (3) thus, the district court was required hold a hearing and

reconsider Joseph’s minor-role request. This argument ignores the fact that, in

Joseph’s first appeal, this Court affirmed the district court’s denial of Joseph’s

request for a minor-role reduction and stated that “Count 3 did not affect Joseph’s



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guidelines calculations.” Joseph, 530 F. App’x at 929 n.10. Accordingly, the

mandate rule and the law-of-the-case doctrine precluded the district court from

revisiting, and Joseph from relitigating, the issue of Joseph’s role on remand. See

United States v. Jordan, 429 F.3d 1032, 1035 (11th Cir. 2005) (explaining the

doctrine of the law of the case precludes a party from relitigating issues decided in

an earlier appeal of the same case); Tamayo, 80 F.3d at 1519-20 (explaining that,

under the mandate rule, which is an application of the law-of-the-case doctrine, a

district court can only “settle so much as has been remanded,” and cannot address

sentencing issues already decided in the first appeal (quotation marks omitted)). 3

       We also reject Joseph’s argument that a new PSI and sentencing hearing

were required under Pepper v. United States, 562 U.S. ___, 131 S. Ct. 1229 (2011),

so he could present evidence of his post-sentencing rehabilitation. In Pepper, the

Supreme Court concluded that, “when a defendant’s sentence has been set aside on

appeal and his case remanded for resentencing,” the court may consider evidence

of post-sentencing rehabilitation. Pepper, 131 S. Ct. at 1241. The Supreme Court

stressed, however, that the appellate court had “set aside Pepper’s entire sentence

and remanded for a de novo resentencing,” id. at 1251, and that its decision did not

       3
        For the same reasons, we are barred from considering Joseph’s argument in this second
appeal that his re-imposed 63-month sentence is substantively unreasonable. A panel of this
Court already decided that, even without Count 3, Joseph’s total 63-month sentence is
reasonable. See Joseph, 530 F. App’x at 928. We are bound by that earlier determination. See
United States v. Escobar-Urrego, 110 F.3d 1556, 1561 (11th Cir. 1997) (stating that the
determination of a legal issue establishes the “law of the case and must be followed . . . on a later
appeal in the appellate court” (quotation marks omitted)).


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“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,” id. at 1249 n.17. Here, given

the narrow scope of this Court’s limited remand, nothing in Pepper required the

district court to order a new PSI and hold a resentencing hearing so Joseph could

introduce rehabilitation evidence.

      For these reasons, the district court’s decision on remand to amend the

judgment and re-impose the same total 63-month sentence without ordering a new

PSI and holding a resentencing hearing was not an abuse of the limited discretion

our mandate conferred upon it and did not violate Joseph’s due process rights.

      AFFIRMED.




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