     Case: 10-40925     Document: 00511627458         Page: 1     Date Filed: 10/10/2011




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

                                                                            FILED
                                                                         October 10, 2011
                                     No. 10-40925
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RAFAEL SANTOS GALAN-CASTRO, also known as Rafael Hernandez-Castro,
also known as Rafael Hernandez, also known as Rafael Castro, also known as
Rafael Santos Galan, also known as Victor Manuel Hernandez, also known as
Nathan Hernandez, also known as Rafael Fernandez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:08-CR-749-1


Before WIENER, GARZA, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Rafael Santos Galan-Castro pleaded guilty to illegal
reentry. The district court sentenced him to 57 months of imprisonment, three
years of supervised release, and a $100 special assessment. Expressing concern
that Galan-Castro received ineffective assistance of counsel at sentencing, the
district court vacated the judgment against Galan-Castro sua sponte, appointed

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-40925    Document: 00511627458     Page: 2   Date Filed: 10/10/2011

                                 No. 10-40925

the Federal Public Defender to represent Galan-Castro, and set the case for
resentencing. The district court imposed the same sentence on resentencing,
which occurred 14 days after the date on which the original sentence was
imposed.
      On appeal, both parties asserted that the district court lacked jurisdiction
or authority to resentence Galan-Castro. Concluding that the district court
lacked authority under Rule 35(a) of the Federal Rules of Criminal Procedure to
resentence Galan-Castro, we vacated and remanded for reinstatement of the
original judgment.
      Rather than reinstating the original judgment, however, the district court
conducted another sentencing hearing and imposed an amended judgment, once
again sentencing Galan-Castro to 57 months of imprisonment. Galan-Castro
now contends that the district court exceeded the scope of our mandate and that
we should once again vacate and remand for reinstatement of the original
judgment. The government contends that the district court’s amended judgment
satisfies our mandate or, alternatively, that the word “amended” should be
deleted from the judgment.
      “[A] lower court on remand must implement both the letter and spirit of
the appellate court’s mandate and may not disregard the explicit directives of
that court.” United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004). “The
mandate rule simply embodies the proposition that a district court is not free to
deviate from the appellate court’s mandate.” United States v. Becerra, 155 F.3d
740, 753 (5th Cir. 1998) (internal quotation marks and citation omitted),
abrogated on other grounds as recognized in United States v. Farias, 481 F.3d
289, 291-92 (5th Cir. 2007). The mandate rule is discretionary, however, not
jurisdictional. United States v. Hamilton, 440 F.3d 693, 697 (5th Cir. 2006).
      Even though the district court imposed an amended judgment rather than
reinstating the original judgment, the sentence imposed subsequently was



                                        2
   Case: 10-40925   Document: 00511627458      Page: 3   Date Filed: 10/10/2011

                                  No. 10-40925

identical to that in the original judgment, so any error is harmless. Accordingly,
the judgment of the district court is AFFIRMED.




                                        3
