                      Revised October 5, 1998

                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT

                            ____________

                            No. 96-40569
                            ____________


          UNITED STATES OF AMERICA,


                               Plaintiff-Appellee-Cross
                               Appellant,

          versus


          RUBEN GIL BECERRA,


                               Defendant-Appellant-
                               Cross-Appellee,

               and


          AURELIANO SALINAS, SR; AURELIANO SALINAS, JR;
          ALBERICO SALINAS; VICTOR LEAL; JORGE LUIS
          RAMIREZ,


                               Defendants-Cross-
                               Appelees.


          Appeals from the United States District Court
                for the Southern District of Texas

                         September 16, 1998

Before WIENER, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

     After a long and somewhat distorted journey, this case now

reaches us on appeal for the second time.       See United States v.
Leal, 74 F.3d 600, 607-08 (5th Cir. 1996).        In the first appeal, a

prior    panel   affirmed   the   convictions    of   Ruben   Gil   Becerra

(“Becerra”), Aureliano Salinas, Sr. (“Salinas, Sr.”), Aureliano

Salinas, Jr. (“Salinas, Jr.”), Alberico Salinas (“Beco”)1, Victor

Leal (“Leal”), and Jorge Luis Ramirez (“Ramirez”) for conspiracy to

possess with intent to distribute in excess of 1,000 kilograms of

marijuana (Count 1) and for possession with intent to distribute

the same amount of that drug (Count 2), in violation of 21 U.S.C.

§§ 846 and 841(a)(1).        The prior panel, however, reversed and

vacated the sentences that the district court imposed, concluding

that the district court committed clear error in attributing to the

defendants the 3,160 pounds of marijuana that police discovered in

a shed on the ranch where defendant Becerra unloaded a tanker-

trailer full of marijuana.

     Our    opinion    “remand[ed]    to   the    district     court    for

resentencing, attributing to the defendants the amount of marijuana

related to the testimony at trial.”        Id. at 607-08.     None of the

parties disputed that the testimony at trial put the weight of the

expected marijuana delivery at around 1,100 pounds.           See id.    On

remand, however, the government argued that the district court was

not bound by our prior opinion to resentence the defendants based

on “the testimony at trial” because the prior panel did not have a


     1
          Throughout the trial and in the prior opinion, the
parties referred to Alberico Salinas as “Beco.” For the sake of
clarity, this opinion will do the same.

                                    -2-
transcript of Becerra’s sentencing hearing or his confession to the

FBI, both of which supported the district court’s conclusion that

the defendants transported all 3,160 pounds of marijuana discovered

in the shed.    Nonetheless, the district court determined that it

was bound by our prior opinion to resentence each of the defendants

based   on   1,100    pounds      of   marijuana,   the    amount    that   the

confidential government informant (“confidential informant” or

“CI”) had testified he believed would be delivered.

      The government now appeals, alleging that the district court

erred in determining that it was bound by our prior opinion to

resentence the defendants using 1,100 pounds of marijuana, and that

we should apply an exception to the law of the case doctrine to

reverse our earlier determination in Leal.            The government also

argues that, in any event, the district court lacked jurisdiction

to resentence Leal.         Becerra cross-appeals, claiming that the

district court erred in resentencing him without granting a four-

level, minimal-participant reduction and a three-level, acceptance-

of-responsibility reduction.           We affirm.   Although we agree with

the   government     that   the    now-supplemented       record    would   have

adequately supported the district court’s decision to sentence the

defendants based on 3,160 pounds of marijuana, the exceptions to

the law of the case doctrine do not apply to the case at hand.               We

similarly reject Becerra’s claims of error.

                                        I



                                       -3-
     While our prior opinion in Leal sets out most of the facts of

the underlying drug conspiracy, the parties failed to provide the

prior panel with significant portions of the district court record.

Consequently, the panel did not have before it several important

pieces of information relevant to the validity of the district

court’s sentencing decision.   Accordingly, we recite the facts as

they relate to the issues currently on appeal and point out the

critical facts that the prior panel did not have an opportunity to

consider.

     The drug conspiracy for which the defendants were convicted

culminated on November 5, 1991, with defendants Becerra and Leal

driving a tractor-trailer full of marijuana to a ranch north of San

Antonio (“Kirchner Ranch”). Because the confidential informant had

given the police all the details of the planned delivery, drug

enforcement agents had the trailer under constant surveillance

throughout this day.    After the trailer arrived at the ranch,

Becerra unloaded the marijuana into a shed on the Kirchner Ranch.

The police arrested Becerra and Leal as they drove the empty

trailer from the ranch.    The police then entered the ranch and

discovered 3,160 pounds of marijuana in the shed.       The police

subsequently arrested all of the defendants and indicted them for

their actions in the drug conspiracy.

     Of utmost importance in this case is the fact that Becerra

gave two detailed statements to Federal Bureau of Investigation



                                -4-
(“FBI”) agents in which he admitted that he was told on at least

two occasions that the November 5th delivery would total 3,000

pounds.     Another significant fact is that Becerra confessed to

Judge Kazen in his original sentencing hearing that the shed was

empty when he began unloading the trailer and that some of the

defendants))after trial, but before sentencing))told him to say that

the shed was full of marijuana when he arrived.           For reasons we

cannot surmise, the government failed to bring either of these

facts to the attention of our prior panel.           Not surprisingly,

Becerra similarly failed to raise them with our prior panel.

Because these facts were not considered on the first appeal, we

will set them out in detail here.

                                    A.

     In early January 1992, after Becerra and the other defendants

had been released from jail at the request of the U.S. Attorney’s

Office,2 FBI Agent Mike Rayfield (“Agent Rayfield” or “Rayfield”)

arranged for Becerra to fly from Dallas to San Antonio to meet at

the FBI offices.      The FBI paid for Becerra’s plane ticket and Agent

Rayfield met him at the San Antonio airport on January 18, 1992.

Agent     Rayfield,    together   with    another   FBI   Agent,     David

Schmactenberger, interviewed Becerra for several hours.         Although

the interview was not tape recorded, Agent Rayfield took detailed

notes of Becerra’s statement (“January 18th statement”).           Becerra

     2
          The defendants were released so that the government could
continue its investigation into related drug conspiracies.

                                    -5-
provided   a    complete   description   of   the   November   5th   drug

conspiracy. Becerra’s statement indicates that just prior to the

delivery he was told by Michael Goerndt (who is not a defendant in

this case) that the delivery would be increased from 800 pounds to

3,000 pounds:

       On Tuesday, November 5, 1992, BECERRA picked up GOERNDT
     at GOERNDT’s house at approximately 11:00 a.m. Between
     3:00 and 4:00 p.m., GOERNDT was paged by a guy from
     Laredo. BECERRA advised that GOERNDT then called Laredo
     from a pay phone. Upon completion of the call, GOERNDT
     told BECERRA “were in luck, 800 pounds is on the way.”
     GOERNDT told BECERRA that they were to meet the load at
     10:00 p.m.
        BECERRA advised that GOERNDT was paged again at 7:00
     p.m. GOERNDT made a phone call and at the completion of
     the call told BECERRA they were to meet ERNIE, PABLO, and
     ROGELIO at a McDonalds and 3,000 pounds of marijuana was
     on the way.    GOERNDT further told BECERRA that 2,000
     pounds was for PABLO and 1,000 pounds was for someone
     else.

Becerra’s statement also indicates that during the November 5th

delivery, another defendant (Beco) bragged that the 3,000 pound

marijuana shipment came from him:

     BECERRA advised that once at the motel ROGELIO stayed in
     the car (BECERRA’s car) and he, BECERRA, went to the room
     and met with a Hispanic male (later identified by BECERRA
     in a photo array as ALBERICO SALINAS) who rode with
     BECERRA and ROGELIO as they led the tanker tractor-tailor
     to the KIRCHNER ranch.      During the drive, ALBERICO
     constantly bragged about his marijuana trafficking and
     indicated the 3,000 pounds to be delivered came from him.

Becerra also admitted to Agent Rayfield that he (Becerra) was the

one who unloaded the marijuana from the trailer into a shed located

next to the main residence.       After the interview was finished,

Agent Rayfield took Becerra back to the airport and told Becerra to


                                  -6-
“stay in touch.”

     On June 9, 1993, after Becerra was rearrested and incarcerated

in Mansfield Correctional Facility, Agent Rayfield, together with

Drug Enforcement Agency Agent Jeffrey Jackson (“Agent Jackson”),

met with Becerra to go over his January 18th statement.                 Agent

Rayfield read Becerra his Miranda rights and Becerra signed a

statement explaining that he did not have a lawyer and that he did

not wish to have one present at that time.          Agent Jackson then told

Becerra that he would get no more than five years time to serve if

he agreed to fully cooperate and testify in this case.3              Becerra

told the agents that he was hoping for probation, but Agent Jackson

informed Becerra that probation was not possible.            The agents and

Becerra reviewed Becerra’s statement sentence by sentence, making

amendments and changes where Becerra remembered different details.

Becerra again acknowledged that the statement was his complete

recollection of the events surrounding the November 5th drug bust.

Becerra did not state that there was already a substantial amount

of marijuana in the shed when he began unloading the trailer (let

alone    2,000   pounds),   and   he   did   not   retract   his   statements

acknowledging that he was told the shipment totaled 3,000 pounds.

     Before trial, Becerra sought to have his statements suppressed

on the ground that they           had been taken in violation of his

constitutional rights.        The district court held an extensive

     3
          Becerra never testified at trial and did not receive the
benefit of this deal.

                                       -7-
suppression hearing in September 1993 at which Agents Rayfield,

Schmactenberger,       and   Jackson,    as     well    as     Becerra   himself,

testified.    At the suppression hearing, Becerra contended that the

agents had promised him that he would not be prosecuted if he

cooperated with the government and that the agents never read him

his Miranda rights at the June 9th meeting.                     Becerra did not

contend before the district court))and for that matter, still does

not contend before this Court))that anything in his statements to

the FBI was materially untrue. At the suppression hearing, Becerra

acknowledged that his statements were “very detailed” and that he

told   the   agents    “everything     that    [he]    knew”    about    the   drug

conspiracy.    Becerra also admitted to Judge Kazen that he signed

the waiver of rights form at the June 9th interview, which stated

that he did not have an attorney and that he was willing to talk to

the agents without one present.              Becerra nonetheless maintained

that the agents had forged his signature on a different portion of

the waiver form and that he only agreed to speak to the agents

because they promised he would not be prosecuted.

       Judge Kazen found that Becerra’s testimony was not credible

and explicitly rejected his assertion that the agents had promised

him that he would not be prosecuted.           Judge Kazen accordingly held

that Becerra’s statements to the FBI were voluntary and would not

be   suppressed   at   trial.     As    we    discuss   below,     however,     the

government did not introduce Becerra’s statements into evidence at



                                       -8-
trial4 and failed to bring the substance of the statements to the

attention of the prior panel in either the first appeal or the

petition for panel rehearing.5

                                  B

     At trial, the government introduced transcripts of recorded

phone calls between various members of the conspiracy and the


     4
          Because Becerra’s statements were not physically
introduced into evidence at trial, the district court instructed
the jury as follows:

       There is also, and you heard testimony, that one of
     these defendants, Mr. Becerra, later, after the fact,
     made certain oral statements tending to admit his guilt,
     his involvement in this affair. Incidentally, do not
     expect . . . and you may be confused about this. Do not
     expect to read that statement because it was not
     admitted. It was not offered in evidence and properly
     so. Because, according to the testimony, it is not a
     signed statement by him, it is not a handwritten
     statement by him. What you have is the agent telling you
     what . . . and there, it’s the agent’s credibility you
     have to weigh. He is telling you as a witness under oath
     that Becerra told him these things.
       Now, he claims to have made notes of those, but the
     notes themselves are not the evidence.          It’s his
     recollection of the . . . It’s his testimony that’s
     really evidence. Of course, he can be challenged by his
     notes, and that’s why we even had that recess, to be sure
     that everybody had seen the notes and asked him whatever
     questions they want to ask him, but I’m just telling you,
     don’t expect to read a statement ‘cause there isn’t one
     in evidence.     But to the extent that the Agent
     [Rayfield], I believe, has testified here that [Becerra]
     told him all of these things, you have to decide what
     weight to give that.

(ellipses in original).
     5
          This omission is particularly puzzling in light of the
fact that Becerra’s motion to suppress his FBI statements was one
of the primary issues before trial and in the first appeal.

                                 -9-
confidential informant. The recorded conversations, like Becerra’s

statements to the FBI, see supra at 5, demonstrated that the

defendants discussed the delivery of varying amounts of marijuana

at different times during the course of the conspiracy.               The

confidential informant ultimately testified that the defendants

told him that the plan was to transport about 1,100 pounds of

marijuana from Laredo, Texas to the ranch outside of San Antonio.

All   parties   conceded   that   following   the   defendants’   arrest,

government agents seized 3,160 pounds of marijuana from the shed

located on the Kirchner ranch. The defendants produced no evidence

that any marijuana was in the shed before Becerra’s delivery;

indeed, the defendants did not even raise this theory at trial.

Similarly, perhaps because the weight of the marijuana was not an

element of the substantive offense (and thus was not relevant for

the jury),6 the government produced no witness as to the amount


      6
          Although the indictment charged the defendants with
conspiracy to possess in excess of 1,000 kilograms of marijuana
(approximately 2,200 pounds), the weight of the drug is not an
element of the substantive offense. See United States v. Cisneros,
112 F.3d 1272, 1282 (5th Cir. 1997) (“[T]his Court has held that
‘[p]roof of the quantity of controlled substances at issue is not
an element of an offense under 21 U.S.C. §§ 841(a) and 846.’”)
(quoting United States v. Montes, 976 F.2d 235, 240 (5th Cir.
1992)).    The weight of the drug is, however, relevant for
sentencing purposes. A ten year mandatory minimum applies where
the amount of marijuana is greater than 1,000 kilograms
(approximately 2,200 pounds), see 21 U.S.C. § 841(b)(1)(A)(vii),
while a five year mandatory minimum applies where the amount of
marijuana is between 100 and 1,000 kilograms (approximately 220 -
2,200 pounds). See 21 U.S.C. § 841(b)(1)(B)(vii).
     Thus, the indictment put the defendants on notice that they
could be sentenced under the much more stringent penalties for

                                   -10-
actually unloaded from the trailer into the shed.

     Although none of the parties introduced Becerra’s statements

into evidence at trial, Agent Rayfield and Agent Jackson testified

at length about his two statements.         Rayfield testified that

Becerra had told him that he unloaded the marijuana from the

trailer into the shed and that someone else was supposed to arrive

at the ranch to “split up the three thousand pounds of marijuana.”

Noticeably   absent   from   Rayfield’s   testimony   about   Becerra’s

statement is any suggestion that there was already 2,000 pounds of

marijuana in the shed when he began unloading the trailer:

     Prosecutor:      Okay.   Now, in giving a
                      statement,     did   the
                      defendant   Becerra tell
                      you about the events of
                      November 5th, 1991?

     Rayfield:        Yes, he did.

     Prosecutor:      Okay.   What did he say
                      about that day?

     Rayfield:        That basically starting
                      in the morning hours of
                      that day, he was involved
                      with several other people
                      and     his     function,
                      supposedly, was to help
                      unload     a    load   of
                      marijuana that was coming
                      up,    supposedly,   from
                      Laredo . . . .

     * * *


possessing an excess of 2,200 pounds. Notwithstanding this fact,
the defendants put on no evidence supporting their belated claim
that 2,000 pounds of marijuana were already in the shed when
Becerra arrived with the trailer-full of marijuana.

                                 -11-
Prosecutor:   Did he tell you where he
              went then, after being at
              the Relay Station Motel?

Rayfield:     Yes. . . . According to
              Mr. Becerra, about four
              miles south of the ranch,
              he got out of his car and
              got into the truck with
              the driver so that he
              could show him exactly
              where to go on the ranch,
              and that’s what he did.
              He led them directly to
              the ranch.

Prosecutor:   Okay. Did he say whether
              or   not    the   tractor
              entered the ranch then?

Rayfield:     Yes.   After they drove
              the       additional
              approximate   four  miles
              and drove into the ranch,
              he said they waited about
              thirty minutes.      They
              were expecting some other
              people and he was told to
              wait.   The other people
              didn’t show up and so per
              the instructions he had
              received,    they   began
              unloading the marijuana
              from   the    front   two
              compartments     of   the
              tanker truck and then
              loaded it into a shed
              next to a main house on
              this ranch. Part of his
              instructions were to beep
              somebody after the job
              was done, because these
              other     people     were
              supposed to show up and
              begin splitting up the
              three thousand pounds of
              marijuana. . . .



                        -12-
     Prosecutor:      Was that the extent of
                      what he told you about
                      his    activities   on
                      November 5th, 1991?

     Rayfield:        Yeah, with one exception.
                      While   he  was   at   the
                      ranch, the person who
                      rented the ranch showed
                      up for about a fifteen
                      minute period of time.

(emphasis added).

     Agent Rayfield also testified about the subsequent June 9,

1993 meeting that he had with Becerra.            Rayfield stated that the

purpose of the June 9th meeting was “to check the correctness of

the statement [he] had originally received from Mr. Becerra.”

Agent Rayfield     testified   that   he   went    over   the   January    18th

statement sentence by sentence with Becerra and that except for

some minor corrections, “his statement remained the same.”                Agent

Jackson similarly testified that:

     After Becerra was advised of his rights and after Mr.
     Becerra signed the [waiver of rights form] and myself and
     Agent Rayfield witnessed it, Mr. Becerra was handed a
     copy of the original interview from January of ‘92. We
     asked Mr. Becerra to read the form in its entirety and he
     read the form. Once he finished the form, we went line
     by line, paragraph by paragraph, page by page and
     reviewed the original statements that were taken in the
     first interview.

Agent Jackson confirmed that Agent Rayfield’s testimony accurately

reflected   the   substance    of   Becerra’s     statement,    and   Rayfield

testified that Becerra adopted the written statement as his own.7

     7
          Notably, at the close of the government’s case, Becerra’s
counsel specifically asked the district court to read Becerra’s

                                    -13-
                                       C

     After the jury found the defendants guilty on both counts of

the indictment, attention shifted to sentencing. Oscar Chavez, the

U.S. Probation Officer (“Officer Chavez”), compiled Pre-Sentence

Reports (“PSRs”) for each defendant.          Based on Becerra’s detailed

statements to the FBI agents and an interview with Officer Chavez,

the PSRs concluded that the defendants transported the entire 3,160

pounds found at the Kirchner ranch.           As Becerra’s PSR indicated,

“[Becerra] made a decision to make a detailed statement to the U.S.

Probation     Officer      during    the    course   of     the   presentence

investigation against the [advice] of his attorney.” Becerra’s PSR

further stated that he “has not denied the factual elements of the

offense . . . [and] provided complete information to the Government

concerning his own involvement in the offense prior to the trial.”

The PSR     noted   that   Becerra   admitted   that   he   “unload[ed]   the

marihuana into a storage room adjacent to the ranch house.”            A fact

that was not put in the PSRs))and one that may have avoided the

necessity of the remand in this case))is that Becerra also admitted

to Officer Chavez that the shed was empty and that it contained

only “hay and some dog food” when he began unloading the marijuana




January 18th statement: “If the court would indulge the defendant
in reading the statement that Mr. Becerra gave the agents on
January of 1992 . . . .” Counsel further encouraged the court to
“take it under advisement and look at the contents of what is
alleged on that exhibit, on that alleged statement, it’s really
Becerra working for [Goerndt], Michael [Goerndt].”

                                     -14-
from the trailer.8

       Based      on    Becerra’s   “detailed        pre-trial    statement    to     FBI

agents” and his “detailed [post-trial] statement to the U.S.

Probation Officer,” the PSR concluded that “Defendant Ruben Gil

Becerra is responsible for participating in transaction number one

of    this conspiracy         involving      the   seizure   of    3,160     pounds    of

marihuana.”        Because the drug conspiracy involved more than 2,200

pounds of marijuana (1,000 kilograms), the PSR concluded that there

was   a     ten   year     mandatory   minimum       sentence,    see   21   U.S.C.     §

841(b)(1)(A), and that the base offense level under the sentencing

guidelines was 32.          See U.S.S.G. § 3D1.1.        Although the Local Rules

of    the    Southern      District    of    Texas    generally    require     written

objections to place PSR findings in controversy, see, e.g., United

States v. Ruiz, 43 F.3d 985, 991 & n.13 (5th Cir. 1995); United

States v. Esqueda-Moreno, 56 F.3d 578, 581 n.3 (5th Cir. 1995); cf.

FED. R. CRIM. P. 32(b)(6)(D) (“For good cause shown, the court may

allow a new objection to be raised at any time before imposing

sentence.”),           Becerra did not file written objections to the PSR’s

conclusion that he be sentenced based on 3,160 pounds, nor to the

PSR’s factual finding that he was responsible for the total amount




       8
          The fact that Becerra told the probation officer that the
shed was empty was revealed at his April 6th sentencing hearing
before Judge Kazen. See infra at 21-22.

                                            -15-
of 3,160 pounds of marijuana found in the shed.9

     The PSRs for the remaining defendants similarly concluded that

each defendant be sentenced based on the total amount of marijuana

transported by the defendants, unloaded by Becerra, and recovered

from the shed.    Unlike Becerra, each of the remaining defendants

filed written    objections   to   the    PSR’s   conclusion   that   he   be

sentenced based on 3,160 pounds of marijuana.              Significantly,

however, none provided rebuttal evidence to contradict Becerra’s

admissions that he unloaded all 3,160 pounds of marijuana into the

shed.     Indeed, none of the defendants claimed in their written

objections to the PSR that there was already marijuana in the shed

when Becerra began unloading the trailer (as discussed below, this

theory first was articulated while the defendants were awaiting

sentencing, see infra at 21-22).           In fact, with the possible

exception of Salinas, Sr. and Leal, none of the defendants argued

that the November 5th delivery involved any amount less than 3,160

pounds of marijuana.10


     9
          If the quantity of marijuana had been 1,100 pounds, the
statutory mandatory minimum should have been five years, see 21
U.S.C. § 841(b)(1)(B)(vii), and the base offense level should have
been 28 under the Sentencing Guidelines. See U.S.S.G. § 2D1.1.
Becerra’s only written objection to the PSR, however, was that it
incorrectly determined his criminal history points; this issue is
not relevant on appeal.
     10
          Salinas, Sr., was the only defendant who contended that
there was less than 3,160 pounds of marijuana transported in the
trailer.   He did not, however, support his contention with any
rebuttal evidence, stating in conclusory fashion only that “the
amount of marihuana seized is not the amount that was transported

                                   -16-
     Instead, the defendants grounded their objections to the PSRs

on their claims that they did not intend to transport 3,160 pounds

of marijuana (not that 3,160 pounds was not transported).             For

example, Ramirez’s objection to the PSR simply stated that he

“should be sentenced at a base offense level that reflects his

knowledge and intent which is 1,100 pounds.” (emphasis added).

Salinas, Jr. similarly grounded his objection on “the Probation

Officer failing to mention that the negotiations involved 700 to

1,100 pounds of marihuana.”       Beco’s objections stated only that

“the evidence presented during the trial talked about transporting

700 to 1,000 pounds of marihuana . . . [and] there is no indicia of

reliability that the defendant had knowledge that there was a

larger amount of marihuana being transported.” (emphasis added).

As these objections demonstrate, the defendants (at least in their

written objections) did not dispute the fact that Becerra unloaded

all 3,160 pounds of marijuana found in the shed.

                                    D

     The district court held sentencing hearings for Beco, Leal,

Ramirez,   and   Salinas,   Sr.   on    March   28,   1994.   The   court

subsequently held a hearing for Salinas, Jr. on April 1, 1994, and


on November 5, 1991. All testimony and information reveals that
the amount was 700 to 1,100 pounds.” Leal maintained his innocence
in the offense and objected to the use of 3,160 pounds as follows:
“The defendant through his attorney maintains that he is innocent
in this case and denies any guilt. . . . The attorney contends
that the evidence at trial showed that the amount of marihuana
involved in this case was 1,100 pounds.”

                                  -17-
a   hearing for Becerra on April 6, 1994.              At the sentencing

hearings, the defendants again raised several different theories as

to why they should not be sentenced based on the 3,160 pounds of

marijuana discovered at the shed.             At the March 28 hearing,

Ramirez’s attorney argued that he should not be sentenced based on

the   3,160    pounds   of   marijuana   because   Ramirez   did   not   have

knowledge that 3,160 pounds was being transported.            He explained

that “if Jorge Ramirez contemplated that he was involved in an

1,100 pound count conspiracy that turned out to be a 3,000 pound

conspiracy, I don’t think he ought to be sentenced for 3,000

pounds.”      Significantly, Ramirez’s counsel did not argue that only

1,100 pounds was transported and delivered to the shed by Becerra,

or that 2,000 pounds was already in the shed.          The district court

rejected Ramirez’s claim.

      Counsel for Beco took a different approach at his March 28

sentencing hearing, arguing (for the first time) that 2,000 pounds

of marijuana was already in the shed when Becerra began to unload

the marijuana from the trailer.            Beco’s counsel explained that

Becerra had now changed his mind about whether the shed was empty

when he began unloading the trailer, and that Becerra was now

willing to testify that the shed was full of marijuana when the

trailer arrived.        Judge Kazen rejected Beco’s belated attempt to

call Becerra to testify that the shed was full of 2,000 pounds of

marijuana when he began unloading the trailer and that he had



                                    -18-
inadvertently forgotten to tell the FBI agents and the probation

officer of this fact during his many confessions.

     Judge Kazen stipulated that Becerra was now willing to state

that there was 2,000 pounds in the shed, but stated that he would

not bring Becerra into court to backtrack again.           Judge Kazen

concluded that he would give no credibility to the self-serving,

jail-house statement that 2,000 pounds of marijuana was already in

the shed when the trailer arrived.11    Judge Kazen decided instead

     11
          Beco’s counsel had the following exchange with Judge
Kazen:

     Counsel:       The other point, Your Honor,
                    just for clearing the record,
                    because it would be a point on
                    appeal for [Beco] Salinas; that
                    I   don’t   know  whether   the
                    Government would stipulate or
                    the Court acknowledges that Mr.
                    Becerra is saying, presently,
                    that there was some marijuana
                    within, other than bringing him
                    in to say it.

     Court:         Well, if that’s     what   you   say   is   his
                    latest theory --

     Counsel:       I spoke with [the probation
                    officer] and he said that the
                    last thing [Becerra] told him
                    was that there was marijuana or
                    some bundles there. Didn’t you
                    just tell me that?

     Prosecutor:    The first time --

     Court:         I know -- I accept what my probation
                    officer told -- and I’ll say this for the
                    record about Becerra, Becerra’s a man
                    who, when he was captured, gave a full
                    and complete confession, then hired --

                              -19-
to rely on Becerra’s uncoerced statements to the probation officer,

Becerra’s failure to object to the quantity of marijuana as set

forth in his own PSR, and the unlikely scenario presented by the

defendants’ new theory (i.e., that the elaborate conspiracy added

only 1,100 pounds of marijuana to the stash of 2,000 pounds of

marijuana already sitting in the shed when Becerra unloaded the

trailer).12   Judge Kazen explained his reasons as follows:



                     then got a lawyer, then fired that lawyer
                     and got another lawyer, then all of a
                     sudden   was   saying   that    all  that
                     confession was coerced. Now, he’s back
                     here in front of me, the other day,
                     firing that lawyer and saying that lawyer
                     betrayed him in some way, and -- and I
                     don’t even know what he wants to do now.
                     If he wants me to get him a new lawyer,
                     and I haven’t sentenced him yet, so I
                     just don’t think it’s appropriate for me
                     to bring him in here and have him start
                     trying to backtrack again.     Because at
                     this stage, I have -- you know, based on
                     the record that I have with Mr. Becerra,
                     I just -- you know, I give no credibility
                     at this stage to what he’s saying anyway.
                     And so even aside from that, I --

     Counsel:        Even if he said that?

     Court:          Right. But I’ll stipulate with
                     you if that will help, if
                     that’s what he’s telling you
                     folks now.

     12
          The district court also explained that it did not
consider the confidential informant’s testimony dispositive of the
amount carried because the conspirators may have simply told the
informant that he would be carrying 1,100 pounds in order to make
him “feel less afraid to get involved,” or perhaps because they
wanted to pay him less for his role in the conspiracy.

                                -20-
        Well, let me repeat the prior comments, but add one
     thing. Because, Mr. Perez [counsel for Beco], you’ve
     really raised two different theories, and so let me just
     comment. First of all, is the theory that maybe a good
     chunk of this marijuana, more than half of it, was
     already at the ranch.
       I would say to you the following: As I understand this
     record, there is absolutely no dispute at all that --
     when the agents went in to this ranch, shortly after the
     truck went in and when the bust was made, that they --
     that there was 3,160 pounds there.
        So theory number one is that two-thirds of that was
     already at this ranch, that all of this operation from
     the South, which involved these people here in Zapata
     coordinating with people from San Diego, meeting people
     in Mathis, arranging people to meet in San Antonio,
     following this whole convoy situation, all of which is in
     the record, was all done just to bring a little extra
     amount, or maybe 7 or 800 pounds, to a load that was
     already there over [2,000] pounds.
     Number one, I don’t think that makes any sense. Number
     two, the -- Becerra, although granted, he vacillates in
     and out of what his position is. But he has said to the
     probation office that it was a full truck loaded to the
     [g]ills, and that there was nothing else there when he
     off loaded it. Number three, the truck, as I said, was
     on constant surveillance.

     For    obvious      reasons,      Judge    Kazen      refused     to    give   any

credibility to the alleged change of heart by Becerra))made while

Becerra    and    the    other    defendants        were    in     custody    awaiting

sentencing, where the only remaining issue was the amount of

marijuana       for     which    the    defendants         would     be      sentenced.

Particularly because Becerra was the only defendant who could

testify    to    the    offloading     and     he   had    already     indicated    in

statements to the FBI and the probation officer that the load was

over 3,000 pounds, Judge Kazen refused to indulge Beco’s invitation

to recall Becerra.

     In Salinas, Jr.’s sentencing hearing on April 1, 1994, his

                                        -21-
counsel conceded that the November 5th delivery involved the

transportation of 3,000 pounds of marijuana.     Again, he did not

claim that there was already 2,000 pounds of marijuana in the shed;

instead, he argued that the 3,000 pound load of marijuana was

packaged in two distinct portions in the trailer and that Salinas,

Jr. only intended to participate in a smaller conspiracy of 1,100

pounds of marijuana.13    Judge Kazen questioned Salinas, Jr.’s

counsel about his theory that Salinas, Jr. should not be sentenced

on the entire amount of marijuana as follows:

     Court:     Okay. And Becerra, however, so we
                can complete the story, also said
                that when he arrived at the Kirchner
                ranch to off-load the marijuana from
                this truck, he loaded it in a shed
                at the ranch, correct?

     Probation Officer:   That’s right.

     Court:     Then there was nothing else in the
                shed. And when it was off-loaded,
                it’s undisputed by everybody that
                there was 3,000 pounds in that
                trailer, correct?

     Counsel:   I -- I understand.

     Court:     What -- with that and I’m not -- I’m
                not criticizing you. I know there’s
                different ones that raise this
                point, but they all have different
                theories about it.      What’s your
                theory?


     13
          The probation officer had testified that Becerra told him
that there were two distinct portions of marijuana in the trailer:
“[O]ne of the portions was stacked very neatly and covered while
the rest of the tanker trailer bundles were -- seemed to be
disorganized and simply just thrown in there.”

                               -22-
     Counsel:   My theory is, it is evident from the
                tapes   that    were    --   in   the
                Government’s      possession      and
                introduced at trial, that my client
                was talking to -- between 700 to
                1,100 pounds, period. In fact, as
                part of that same tape introduced at
                trial, after that had -- tape made
                after the bust itself, my client
                states -- or Aureliano, Jr. states
                that had he been involved in 3,000
                pounds he would have done it this
                other way, you see, indicating a
                complete lack of knowledge, and I
                understand    that    a    reasonable
                foreseeability on that is -- is a
                standard.
                   However, it was evident that he
                was still of the impression that you
                were dealing only in this lesser
                amount. And I know it’s hard to get
                around that fact that there was
                3,000 pounds, period, you know.
                There’s -- but I think that perhaps
                a legal argument could be made that
                his intention was to get involved
                between 700 to 1,100. That he was
                involved I think that’s a matter of
                -- of record, not involved in the
                loading   itself;    therefore,   was
                unaware. Now, we have two separate
                packaging -- or not packaging, but
                loading structures. I don’t know if
                it was -- the packaging was the same
                or not.    There was no information
                with regards to that, but two
                separate, different loadings. And I
                think that weighs strongly on -- on
                Aureliano, Jr.’s involvement as to
                the amounts, Your Honor.

Once again, Salinas, Jr.’s counsel did not argue that there was any

marijuana in the shed, and conceded that “it’s hard to get around

that fact that there was 3,000 pounds, period.”         Judge Kazen

rejected Salinas, Jr.’s legal claim that he should not be held


                                -23-
legally responsible for the entire amount of marijuana that he

assisted in transporting to the Kirchner Ranch.       See U.S.S.G.

§ 1B1.3(a)(1)(A) (providing that defendant is accountable for “all

acts and omissions committed, aided, abetted, counseled, [or]

commanded” without respect to “reasonable foreseeability”); see

also United States v. Carreon, 11 F.3d 1225, 1237 & n.60 (5th Cir.

1994) (noting that “reasonable foreseeability” limitation does not

apply to conduct for which the defendant is an aider and abettor).

Although Salinas, Jr. ordered a transcript of his sentencing

hearing, the record indicates that it was never produced for the

prior panel.

     Judge Kazen’s decision to rely on the conclusions in the PSR

to sentence the defendants based on 3,160 pounds of marijuana was

proven correct at Becerra’s sentencing on April 6, 1994.     At that

hearing, Becerra admitted in open court that the shed was empty

when he began to unload the marijuana from the trailer and that he

told this to Officer Chavez during his PSR investigations. Becerra

explained his recent vacillation to Judge Kazen by stating that

while he was in jail, the other defendants told him to say that he

unloaded only 1,000 pounds of marijuana and that there was already

marijuana in the shed when he began to unload the trailer.   Becerra

also informed Judge Kazen that someone in the jail had threatened

the safety of his family if he did not change his story about the

amount of marijuana that he transported.    The following exchange


                               -24-
occurred between Judge Kazen and Becerra:

     Court:     -- there’s no question that there
                was 3,000 pounds in that tanker.
                Mr. Chavez [the probation officer]
                says that you admitted that you
                unloaded --

     Becerra:   Yeah.   I admitted I unload, but I --

     Court:     And that that’s -- that it was all
                there and that you’re -- the
                codefendants are conjuring up this
                theory that it was -- half of it or
                more was already at the ranch, and
                you just added a little bit.

     Becerra:   They -- they had -- they’ve been
                telling me that over there in jail,
                to say this, to say that. I’m just
                going to say what I seen there.
                Like   I  told   Mr.  Chavez   [the
                probation   officer],   there   was
                nothing in the -- in the shed. The
                only thing that was there was hay
                and some dog food or horses and --
                but I didn’t know what was the
                amount on there or anything in the
                truck.

     Court:     And -- and for that matter, I don’t
                really have any reason to quarrel
                with that. I mean -- you know, I
                don’t know what you knew or didn’t
                know, but it doesn’t necessarily
                surprise me that they didn’t spell
                out to you and say, “Mr. Becerra,
                now, we want you to help us and
                there’s exactly 3,000 pounds in
                there.”   The sense I get is that
                maybe nobody really knew.

     The district court ultimately sentenced all of the defendants

based on 3,160 pounds of marijuana.14        All of the defendants

     14
          Based on the quantity of marijuana, the district court
imposed the following sentences:

                                -25-
appealed   their    convictions   to       our   court,   and   all   but   Leal

challenged the district court’s use of 3,160 pounds of marijuana

for sentencing. Significantly, neither the transcript of Becerra’s

sentencing hearing nor the content of his FBI statements was put

before our prior panel.

                                   II

                                       A

     In our prior opinion, although we affirmed the convictions of

all the defendants, we reversed and vacated the sentences because

we found that “[t]he district court’s findings as to the amount of

marijuana to attribute [were] not supported by a preponderance of

the evidence.”     The panel rested its conclusion on the defendants’



     1. Salinas, Sr. - 240 months in the custody of the Bureau
     of Prisons, a fine of $3,000 and a supervised release
     term of ten years.

     2. Leal - 240 months in the custody of the Bureau of
     Prisons, a $2,000 fine and a supervised release term of
     ten years.

     3. Salinas, Jr. - 168 months in the custody of the Bureau
     of Prisons, a fine of $2,500 and a supervised release
     term of five years.

     4. Becerra - 135 months in the custody of the Bureau of
     Prisons, a fine of $1,000 and a supervised release term
     of five years.

     5. Ramirez - 125 months in the custody of the Bureau of
     Prisons, a fine of $2,500 and a supervised release term
     of five years.

     6. Beco - 125 months in the custody of the Bureau of
     Prisons, a fine of $2,500 and a supervised release term
     of five years.

                                  -26-
assertions (in their briefs on appeal) that there was no evidence

that the trailer contained all 3,160 pounds discovered at the shed.

As demonstrated above, however, there was substantial evidence that

the trailer contained all 3,160 pounds discovered at the shed; the

problem for the prior panel was that little of it was in the

appellate record.       Although Becerra appealed his sentence and

conviction, he failed to order a transcript of his sentencing

hearing.   In doing so, he violated our well established rule that

a defendant’s failure to order those parts of the record containing

errors prevents the court from reviewing the error.           See FED. R.

APP. P. 10(b)(2) (“If the appellant intends to urge on appeal that

a finding or conclusion is unsupported by the evidence or is

contrary to the evidence, the appellant shall include in the record

a   transcript   of   all   evidence   relevant   to   such   finding   or

conclusion.”); see also United States v. Narvaez, 38 F.3d 162, 167

(5th Cir. 1994) (“As the district court relied upon such evidence

and as Narvaez failed to order that portion of the record, this

court is precluded from reviewing his allegation.”).          The panel,

however, did not enforce the rule and proceeded to review Becerra’s

claim of error.       In addition to Becerra’s failure to order the

sentencing hearing transcript, neither the government nor any of

the defendants told the prior panel about the events that took

place at Becerra’s sentencing hearing (i.e., that Becerra told

Judge Kazen that the shed was empty when he began unloading the


                                  -27-
trailer and that the other defendants were telling him to lie about

it).    Furthermore, the government failed to inform the panel that

in his confessions to the FBI, Becerra admitted that he was told

that the delivery would be 3,000 pounds.

       Consequently, because the parties failed to provide the panel

with   critical   information,   the   panel   opinion    focused   on   the

testimony at trial (rather than all of the events relevant to the

district court’s sentencing decision): “The testimony at trial as

to the amount of marijuana to be transported differed from the

amount actually seized. None of the testimony indicated over 3,000

pounds of the substance.”   Leal, 74 F.3d at 607.        These conclusions

were correct to the extent that they were based on the portion of

the record which the panel had the opportunity to review: the

government did not put forward any testimony at trial regarding the

3,160 pounds (which, as we noted above, it did not have to do

because the weight is not an element of the offense, see supra at

9 n.6).    The panel opinion continued, however, explaining what it

believed to be the district court’s reasons for sentencing the

defendants on the entire amount found in the shed:

       The [district] court found it incredulous that the
       defendants would engage in such a complicated scheme to
       contribute only a third of the amount to an existing
       stash.    Furthermore, the court surmised that the
       defendants may have understated the actual amount to the
       CI for fear he would demand greater compensation given
       the true value of his services to the operation.

Id. at 607-08.


                                  -28-
       Because of the inadequate record before it, the prior panel

concluded that the district court’s “suppositions” were based on

“intuition alone.”     Id. at 608 n.1.     The prior panel found that

“[t]he disparity in the evidence between the defendants activities

and the amount of drugs seized [was] not adequately explained.       The

reasons the court gave [were] mere rationalizations, not specific

enough to assure us sufficiently that the defendants are reasonably

responsible for all the marijuana found at the ranch.”      Id. at 608.

Thus, the opinion “vacate[d] the sentence and remand[ed] to the

district court for resentencing, attributing to the defendants the

amount    of   marijuana   related   in   the   testimony   at   trial.”

Significantly, the opinion also specified that the testimony at

trial “ranged from 500 pounds to a little over 1,000 pounds.          In

particular, the CI said that he was told the defendants agreed to

deliver 1,100 pounds of the substance by tanker/trailer.”         Id. at

607.

                                     B

       The government filed a petition for panel rehearing in Leal,

arguing that the district court did not commit clear error when it

attributed 3,160 pounds to the defendants.         Instead of setting

forth the significant facts that had been omitted from both its

brief on appeal and the appellate record (as it has done in this

appeal), the government again failed to bring any of the critical

facts to the attention of the panel.      In contrast to its position


                                 -29-
here   (i.e.,   that   the    evidence   clearly   demonstrates   that   the

defendants transported 3,160 pounds), the government argued in its

petition for rehearing simply that “there were two permissible

constructions of the evidence”:

          There are two plausible views of the evidence as it
       relates to the amount of marijuana actually transported
       by the conspirators in the truck. First, the shed at the
       ranch contained no more than 1,500 pounds of marijuana
       when the truck entered the ranch on November 5. . . .
         While this scenario is plausible, it is most unlikely.
       There is no evidence in the record that marijuana was in
       the shed when the truck arrived, and Becerra did not tell
       the agents this when he confessed. . . .
         Second, the shed was empty when the truck arrived, and
       the amount of marijuana unloaded by Becerra and Leal was
       in excess of 3,100 pounds. . . . It is also possible
       that the conspirators did not know exactly how much
       marijuana they were going to transport until the last
       minute.
           In any event, either scenario is possible.        The
       district court chose the second possibility, and cannot
       have been clearly erroneous in doing so.

       The government’s argument demonstrates that it wholly failed

to bring the relevant facts to the attention of the panel.         Indeed,

judging from the contents of its petition for panel rehearing, it

appears that the government was completely unaware of them.              Not

surprisingly, the prior panel rejected the government’s petition

for panel rehearing.         Thereafter, the court issued six separate

(but identical) mandates))a separate mandate for each defendant,

including Leal))stating that “the judgment of the District Court in

this cause is affirmed, and the cause is remanded to the District

Court for further proceedings in accordance with the opinion of

this Court.”     The government did not seek a stay of the mandate


                                    -30-
with respect to the remand of Leal’s or any defendant’s sentence.

                                  III

       Because this case reaches us on appeal for the second time, we

must consider the implications of our prior opinion in Leal and the

well-settled “law of the case” doctrine.      “Under the ‘law of the

case’ doctrine, an issue of law or fact decided on appeal may not

be reexamined either by the district court on remand or by the

appellate court on a subsequent appeal.”     Illinois Cent. Gulf R.R.

v. International Paper Co., 889 F.2d 536, 539 (5th Cir. 1989).

This    self-imposed   doctrine   “serves   the   practical   goals   of

encouraging    finality   of   litigation   and   discouraging   ‘panel

shopping.’” Id. at 539; see also Lehrman v. Gulf Oil Corp., 500

F.2d 659, 662 (5th Cir. 1974).      “It is predicated on the premise

that ‘there would be no end to a suit if every obstinate litigant

could, by repeated appeals, compel a court to listen to criticisms

on their opinions or speculate of chances from changes in its

members.’”     White v. Murtha, 377 F.2d 428, 431 (5th Cir. 1967)

(quoting Roberts v. Cooper, 61 U.S. (20 How.) 467, 481, 15 L. Ed.

969 (1857)).     The law of the case doctrine, however, is not

inviolate.    We have explained that “a prior decision of this court

will be followed without re-examination . . . unless (i) the

evidence on a subsequent trial was substantially different, (ii)

controlling authority has since made a contrary decision of the law

applicable to such issues, or (iii) the decision was clearly


                                  -31-
erroneous and would work a manifest injustice.”   North Mississippi

Communications, Inc. v. Jones, 951 F.2d 652, 656 (5th Cir. 1992);

see also City Pub. Serv. Bd. v. General Elec. Co., 935 F.2d 78, 82

(5th Cir. 1991); Lyons v. Fisher, 888 F.2d 1071, 1074 (5th Cir.

1989); Daly v. Sprague, 742 F.2d 896, 901 (5th Cir. 1984).

     A corollary of the law of case doctrine, known as the mandate

rule, provides that a lower 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.     See

Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363, 1370 (5th Cir. 1992).

“The mandate rule simply embodies the proposition that ‘a district

court is not free to deviate from the appellate court’s mandate.’”

Barber v. International Bhd. of Boilermakers, 841 F.2d 1067, 1070

(11th Cir. 1988) (quoting Wheeler v. City of Pleasant Grove, 746

F.2d 1437, 1440 n.2 (11th Cir. 1984)); see also Harris v. Sentry

Title Co., 806 F.2d 1278, 1279 (5th Cir. 1987) (“It cannot be

disputed that ‘when the further proceedings [in the trial court]

are specified in the mandate [of the Court of Appeals], the

district court is limited to holding such as are directed.’”)

(alterations in original) (quoting 1B MOORE’S FEDERAL PRACTICE ¶

0.404(10), at 172 (1984)); Newball v. Offshore Logistics Int’l, 803

F.2d 821, 826 (5th Cir. 1986) (holding that “a mandate controls on

all matters within its scope”).

     Consequently, unless one of the exceptions to the law of the

                               -32-
case doctrine applies, the district court was bound to follow our

mandate and to resentence the defendants based on the testimony at

trial.    See, e.g., Johnson, 965 F.2d at 1370 (“The ‘mandate rule’

is a specific application of the ‘law of the case’ doctrine.”)

(internal    quotation   marks     omitted);   see   also   Litman   v.

Massachusetts Mut. Life Ins. Co., 825 F.2d 1506, 1516 (11th Cir.

1987) (en banc) (“If circumstances after remand fall into one of

the three exceptions to the mandate rule, the district court has

greater discretion to act.       If the circumstances after remand do

not fall into one of the exceptions . . . then the district court

is constrained to follow the mandate issued by the appellate

court.”).    The government urges that both the first and third

exceptions to the law of the case doctrine apply to the case at

hand.15   We address each argument in turn.


     15
          The government also argues that the district court was
not bound by our mandate to resentence the defendants based on “the
testimony at trial” (and that it could, instead, consider
additional evidence which the government incidentally failed to put
before the prior panel). We reject the government’s attempt to
circumvent the narrow exceptions to the mandate rule and the
explicit language of our mandate.     See Cole Energy Dev. Co. v.
Ingersoll-Rand Co., 8 F.3d 607, 609 (7th Cir. 1993) (“[E]xplicit
directives by [an appellate] court to [a] lower court concerning
proceedings on remand are not dicta.”); Litman v. Massachusetts
Mut. Life Ins. Co., 825 F.2d 1506, 1511 (11th Cir. 1987) (en banc)
(“When an appellate court issues a specific mandate it is not
subject to interpretation; the district court has an obligation to
carry out the order. A different result would encourage and invite
district courts to engage in ad hoc analysis of the propriety of
appellate court rulings.”).
     The government does not argue that the terms of our mandate
were vague or unclear. The argument that the prior panel should
have allowed the district court to resentence the defendants based

                                  -33-
                                      A

     At the 1996 resentencing, the district court rejected the

government’s belated attempt to introduce Becerra’s January 18th

statement   because   our   mandate   ordered   the   district   court   to

resentence the defendants based on “the testimony at trial.”             The

government argues that the district court erred in rejecting the

introduction of additional evidence because the evidence on remand

was substantially different. We reject the government’s attempt to

expand this law of the case exception to correct its own oversight

in failing to present the critical evidence to the prior panel.16



on any evidence that it found relevant))whatever strength it may
have, cf. United States v. Kinder, 980 F.2d 961, 963 (5th Cir.
1992) (“‘[I]n the interest of truth and fair sentencing a court
should be able on a sentence remand to take new matter into account
on behalf of either the government or the defendant.’”)))should
have been presented to the prior panel in the government’s petition
for panel rehearing or a motion to stay the mandate. Thus, unless
an exception to the law of the case doctrine applies, the district
court was bound to resentence the defendants based on “the
testimony at trial.”
     16
          In an attempt to characterize Becerra’s FBI confessions
as “new” evidence, the government asserts in its brief that “[t]he
district court did not learn of the statements Becerra made to the
FBI until resentencing in 1996.” This assertion is both wrong and
irrelevant. First, before trial, Judge Kazen held an extensive
hearing on Becerra’s motion to suppress the very statements that
the government argues he did not learn about until resentencing.
See supra at 7-8.       Furthermore, at trial, defense counsel
explicitly requested that Judge Kazen read Becerra’s FBI statements
for himself.   See supra at 12 n.7. Second, even assuming that
Judge Kazen did not know about the contents of the FBI statements,
the government’s failure to present this evidence to the district
court does not justify or explain its similar failure to put this
evidence before the prior panel))particularly in light of the fact
that Becerra’s motion to suppress his FBI statements was one of the
primary issues in the first appeal. See Lyons, 888 F.2d at 1075;

                                  -34-
      The government fails to provide any reason why it did not, or

could not, present Becerra’s FBI statements to the prior panel in

either the first appeal or the motion for reconsideration.                    See

Lyons, 888 F.2d at 1075 (“The truth is [] that Fisher flatly failed

in the prior proceeding, for reasons best known to him, to adduce

evidence of any consideration, despite his having both the reason

and opportunity to do so.”); Litman, 825 F.2d at 1516 (“Mass

Mutual’s failure to seek modification of our decision had the

effect of binding the district court to our instructions as set

forth in the clear mandate.”). Moreover, our prior opinion did not

leave the issue open for decision nor authorize the district court

to   consider    additional        evidence.      “We   have   held    that   the

‘substantially different’ evidence exception to the law-of-the-case

doctrine does not apply where a prior appeal has not left the issue

open for decision.”      Lyons, 888 F.2d at 1075; see also Barber, 841

F.2d at 1072 n.5 (“The law of the case exceptions apply only when

substantially different evidence comes out in the course of a

subsequent trial authorized by the mandate.”); Goodpasture, Inc. v.

M/V Pollux, 688 F.2d 1003, 1006 n.5 (5th Cir. 1982) (“[T]he

exception to law of the case where ‘evidence on a subsequent trial

[is] substantially different’ is inapplicable where by the prior

appeal the      issue   is   not    left   open   for   decision.’”)    (quoting

National Airlines, Inc. v. International Ass’n of Machinists, 430


Barber, 841 F.2d at 1072-73.

                                       -35-
F.2d 957, 960 (5th Cir. 1970)).

     The prior panel specifically instructed the district court to

resentence the defendants based on “the testimony at trial.”                       Cf.

Barber,   841   F.2d   at     1072   n.5       (rejecting     application     of   the

“substantially different evidence” exception because “[t]he fact

remains   []    that   there    should         have   been    no   opportunity     for

substantially different evidence to appear, as Sharit’s referrals

were not to be considered on remand”).                       Thus, similar to our

conclusion in Lyons, “the district court properly denied [the

government] the right on remand to offer evidence that [it] had had

every   opportunity     and    incentive         to   produce      at   the   earlier

proceeding.”     Lyons, 888 F.2d at 1075; see also Baumer v. United

States, 685 F.2d 1318, 1321 (11th Cir. 1982) (refusing to apply

“substantially different evidence” exception because “[t]here is

nothing in the record to indicate that the evidence produced at the

hearing after remand was unavailable to the taxpayers during the

first trial”).

                                           B

     The government also argues that the district court was not

bound by the law of the case because our prior decision is “clearly

erroneous” and the error works a “manifest injustice.”                        Whether

this exception applies is a close question.                   As demonstrated, the

prior opinion is the result of critical facts being omitted from

the appellate record by both the government and the defendants,


                                      -36-
and, to a lesser extent, the panel’s decision to proceed without

the   transcripts      of      Becerra’s     and   Salinas,   Jr.’s   sentencing

hearings.17

      Our   decision      in    Lyons   v.    Fisher   presents   a   relatively

analogous situation and a useful guide to the case at hand.                 See

Lyons, 888 F.2d at 1073.          In Lyons, our first opinion had reversed

the district court’s order granting summary judgment in favor of

the defendant on an alleged land transaction.             We concluded (on the

first appeal) that the particular land transfer in question was an

“absolute nullity” because there was a lack of consideration for

the transfer and remanded for “further proceedings consistent with

this opinion.”      Id.     On remand, the defendant filed an affidavit

with the district court asserting that he had been paid $450 as

      17
          Indeed, the government argued in the first appeal that
the panel should not consider Becerra’s and Salinas Jr.’s claims of
sentencing error because they failed to provide the relevant
portions of the record.       See Leal, 74 F.3d at 607.         The
government’s argument is backed by a forceful array of precedent.
See, e.g., United States v. Narvaez, 38 F.3d 162, 167 (5th Cir.
1994) (holding that a defendant’s failure to order those parts of
the record that he contends contain error will prevent us from
reviewing that assignment of error); United States v. Hinojosa, 958
F.2d 624, 632 (5th Cir. 1992) (same); United States v.
Juarez-Fierro, 935 F.2d 672, 675 n.1 (5th Cir. 1991) (same); United
States v. O'Brien, 898 F.2d 983, 985 (5th Cir. 1990) (same); see
also FED. R. APP. P. 10(b)(2) (requiring that appellant provides
transcript “of all evidence relevant to [the district court’s]
finding or conclusion”).    Once again, the government failed to
raise this issue in its petition for panel rehearing, and more
importantly, could have solved the problem itself by simply
informing the prior panel of the substance of Becerra’s sentencing
hearing (i.e., that he confessed to Judge Kazen that the shed was
empty).


                                        -37-
consideration for the land transfer, and thus, he argued, our panel

erred   in   concluding     that   the   transfer       was   void    for    lack    of

consideration.       The    district     court,    however       (similar     to    the

district court here), refused to consider this “new” evidence,

holding that the law of the case doctrine precluded it from further

considering the question of the validity of the consideration.                       On

the second appeal, the defendant argued that the clearly erroneous

and   manifest    injustice    exception      applied.          We   disagreed      and

concluded    that   the    defendant     could    not    demonstrate        “manifest

injustice” because he was the one at fault for failing to put forth

the relevant evidence in the first appeal.               We explained that

      We might be persuaded that manifest injustice had
      occurred as a result of the alleged error if Fisher had
      presented such evidence in the prior proceeding and the
      previous panel had disregarded the evidence because of a
      misunderstanding of the law, or if consideration had
      become an issue only after it reached the appellate level
      and Fisher had had no opportunity in the prior proceeding
      to adduce such evidence.

Id. at 1075.      However, because “Fisher flatly failed in the prior

proceeding, for reasons best known to him” to adduce the purported

new   evidence,     “despite   his     having     both    the    reason      and    the

opportunity to do so,” we rejected his claim of manifest injustice.

See id.

      Similarly, in the case at hand, the government now presents to

this court))for the first time))Becerra’s confession to the FBI and

the substance of his sentencing hearing before Judge Kazen.                     While

both indeed support the district court’s first sentencing decision,

                                       -38-
the government “flatly failed” to adduce this evidence in the first

appeal.   See id.; see also Barber, 841 F.2d at 1072 n.5 (refusing

to allow plaintiffs to put forth “new” evidence that had not been

offered at the first trial because “it is well settled that

plaintiffs in all cases are to be given their day in court, nothing

less but nothing more.        Barber was given such an opportunity, as

the case was fully tried the first time, and the ‘new’ records . .

. were available then.”).         We recognize that Becerra shoulders

considerable blame for failing to order the transcript of his

sentencing    hearing   and    that    our   prior   decision   grants     the

defendants a reprieve from their original sentence.               We wish to

emphasize that this Court does not countenance Becerra’s failure to

provide the relevant transcripts of his sentencing hearing and that

this case should serve as a significant reminder of the rationale

for the waiver rule.      See FED. R. APP. P. 10(b)(2); see also supra

at 32 n.17.

     Nonetheless, the government cites no case where our court (or

any court, for that matter) has found that a prior opinion works a

manifest injustice where the party claiming injustice had all the

means and incentive to provide the relevant information in the

first appeal.     Cf. Lyons, 888 F.2d at 1075 (refusing to find

exception to law of the case doctrine because appellant had “every

opportunity and incentive to produce [the relevant evidence] at the

earlier   proceeding”).        Furthermore,    the   government    makes   no


                                      -39-
argument why this “extraordinary” exception to the law of the case

doctrine should apply to the government’s failure to provide

relevant evidence in a criminal case.         “As this Court has noted in

previous cases,   ‘In   this   circuit,   .    .   .   the   law-of-the-case

doctrine is supplanted by our firm rule that one panel cannot

disregard the precedent set by a prior panel even though it

perceives error in the precedent.”            Harris, 806 F.2d at 1282

(alterations in original) (quoting United States v. 162.20 Acres of

Land, 733 F.2d 377, 379 (5th Cir. 1984)).              Even if we may have

reached a different result than our prior panel on the incomplete

record that was before them, our conclusion does not rise to the

extraordinary level required to find a manifest injustice.              See

City Public Serv. Bd., 935 F.2d at 82 (“Only in extraordinary

circumstances may this court sustain a departure from the ‘law of

the case’ doctrine on the ground that a prior decision was clearly

erroneous. Mere doubts or disagreement about the wisdom of a prior

decision of this or a lower court will not suffice for this

exception.”); Parts & Elec. Motors, Inc. v. Sterling Elec., Inc.,

866 F.2d 228, 233 (7th Cir. 1988) (“To be clearly erroneous, a

decision must strike us as more than just maybe or probably wrong;

it must, as one member of this court recently stated . . . strike

us as wrong with the force of a five-week-old, unrefrigerated dead

fish.”).

     Ultimately, therefore, because blame also falls largely at the


                                 -40-
feet of the government for failing to point out to the prior panel

Becerra’s confessions to the FBI and the probation officer, or his

statements to Judge Kazen at the April 6th sentencing hearing, we

decline to find that our prior opinion results in a manifest

injustice.      See Lyons, 888 F.2d at 1075-76 (rejecting application

of manifest injustice exception because “[i]t was only after this

court     rendered    its    decision,      and    it   became     apparent     that

consideration was indeed the win-lose issue of this case” did the

appellant attempt to introduce the relevant evidence); Barber, 841

F.2d at 1072 n.5 (refusing to find exception to the law of the case

doctrine     when    failure       to   bring     relevant    evidence    was    the

appellant’s own fault).            Our conclusion in Lyons is particularly

apt here: “[G]iven [the appellant’s] opportunity and his puzzling

failure    to   adduce      such   evidence     earlier,     we   hold   that   [the

appellant] has not suffered ‘manifest injustice’ simply because the

law-of-the-case doctrine may now preclude his tardy introduction of

that evidence.”      Lyons, 888 F.2d at 1075.

     Consequently, because none of the exceptions to the law of the

case doctrine apply, the district court properly followed our prior

opinion in resentencing the defendants.

                                          IV

     The government also contends that the district court lacked

jurisdiction to resentence Leal, claiming that “Leal’s sentence was

not vacated by this court.”               We disagree, and note that the


                                         -41-
government itself concedes the very point in its brief.18

       The existence of jurisdiction is a question of law that we

review de novo.    See United States v. Teran, 98 F.3d 831, 833-34

(5th Cir. 1996).   As a general matter, a “district court regain[s]

jurisdiction over [a] case upon our issuance of the mandate.”

Arenson v. Southern Univ. Law Ctr., 963 F.2d 88, 90 (5th Cir.

1992); see also United States v. Dozier, 707 F.2d 862, 864 n.2 (5th

Cir. 1983). Unless recalled, that mandate “controls on all matters

within its scope.”    Newball, 803 F.2d at 826.    No party having

moved to stay or recall this mandate, our inquiry into the basis

for the district court’s jurisdiction to resentence Leal is at an

end.    See Leroy v. City of Houston, 906 F.2d 1068, 1074 (5th Cir.

1990) (holding that an appellate mandate retains its force unless

recalled, because even if some portions of the mandate appear to be

“the result of inadvertence on the part of the appellate court,”

the “appropriate procedure” in that situation is to “move this

Court to recall its mandate”).     In the face of the government’s

explicit concession, see supra at 36 n.18, as well as the fact that

a specific mandate issued for Leal,19 we reject the government’s


       18
          In its brief, the government states that this court
“vacated the sentences of all defendants, including Leal, and
remanded for resentencing.” (emphasis added). The government does
not attempt to explain its later contrary assertion.
       19
          As noted above, see supra at 26, separate judgments
issued as to each defendant, and the particular judgment captioned
“United States versus Victor Leal,” states that “the cause is
remanded to the district court for further proceedings in

                                -42-
claim that the district court lacked jurisdiction to resentence

Leal following the issuance of our mandate in his case.                            See

Newball, 803 F.2d at 826 (“When an appellate mandate is issued, a

district court reacquires jurisdiction.”).

                                          V

     We turn now to Becerra’s contentions on appeal, specifically

his assertion that the district court erred in denying him a four-

level   reduction     for   minimal      participation        and    a   three-level

reduction for acceptance of responsibility. The government asserts

that Becerra failed to raise these sentencing issues on the first

appeal,    and     that   the   law     of     the   case    therefore     bars    our

consideration of these abandoned claims.                    We agree.    “[A] legal

decision    made     at   one   stage     of     a   civil    or    criminal      case,

unchallenged in a subsequent appeal despite the existence of ample


accordance with the opinion of this Court.” The opinion, in turn,
states that “[w]e vacate the sentence and remand to the district
court for resentencing, attributing to the defendants the amount of
marijuana related in the testimony at trial.” Leal, 74 F.3d at 608
(emphasis added). Even if our prior opinion should not have given
Leal the benefit of an argument he did not raise, but cf. FED. R.
CRIM. P. 52(b) (“Plain errors or defects affecting substantial
rights may be noticed although they were not brought to the
attention of the court.”), the government should have raised this
argument with a motion to stay the mandate. See 5TH CIR. R. 41.2
(providing that a mandate may be recalled to “prevent injustice”);
see also Leroy v. City of Houston, 906 F.2d 1068, 1075 (5th Cir.
1990) (refusing to treat an appeal following remand as a motion to
recall the prior mandate); Barber, 841 F.2d at 1071 n.2 (refusing
to consider additional argument on second appeal when “counsel
requested neither rehearing by the panel nor rehearing by the court
en banc”); Litman, 825 F.2d at 1513 (explaining that appellee’s
failure to seek any modification of appellate court’s prior
decision limited the issues to those specified on remand).

                                        -43-
opportunity to do so, becomes the law of the case for future stages

of the same litigation, and the aggrieved party is deemed to have

forfeited any right to challenge that particular decision at a

subsequent date.”     United States v. Bell, 988 F.2d 247, 250 (1st

Cir. 1993). Because Becerra did not challenge the district court’s

minimal participant and acceptance of responsibility decisions in

his first appeal, we need not consider those belated challenges

here.    Even   if    we   were   to    reach   the   merits   of   Becerra’s

contentions, they are without merit.

                                        A

     Whether Becerra was a “minimal participant,” entitled to a

four-level reduction pursuant to U.S.S.G. § 3B1.2(a), or a “minor

participant,”   entitled     to   a    two-level   reduction    pursuant   to

U.S.S.G. § 3B1.2(b), is a factual determination that we review only

for clear error.     See United States v. Pofahl, 990 F.2d 1456, 1485

(5th Cir. 1993).     Minimal participants are those who demonstrate a

“lack of knowledge or understanding of the scope and structure of

the enterprise.”     See United States v. Mitchell, 31 F.3d 271, 278

(5th Cir. 1994) (citing U.S.S.G. § 3B1.2, cmt. (n.1)).                  Minor

participants are those “less culpable than most other participants,

but whose role could not be described as minimal.”              Id. (citing

U.S.S.G. § 3B1.2, cmt. (n.3)).

     The testimony at trial established that Becerra knew that he

was involved with several other people in an attempt to transport


                                       -44-
a load of marijuana from Laredo, Texas to Bulverde, Texas, and that

his role in the operation was to assist in the unloading of the

marijuana once it reached its final destination.              Such knowledge

belies any claim to minimal-participant status.                See Rosier v.

United States Parole Comm’n, 109 F.3d 212, 214 (5th Cir. 1997)

(holding that the defendant could not “reasonably assert that he

lacked knowledge or understanding of the enterprise to the degree

necessary to support a reduction as a minimal participant,” when

he admitted to driving the vehicle on other occasions in exchange

for “large sums of money,” and also admitted that he “suspected

that drugs were in the van”).               Accordingly, we hold that the

district court did not err in determining that Becerra qualifies as

a minor rather than a minimal participant.

                                        B

      Whether     Becerra    “accepted      responsibility”    in   a   manner

sufficient to entitle him to a three-level reduction under U.S.S.G.

§   3E1.1,   is   a    determination     requiring   some    judgment   as     to

credibility, and therefore will “not be disturbed unless it is

without foundation.”        United States v. Maldonado, 42 F.3d 906, 913

(5th Cir. 1995).        The guidelines indicate that an acceptance-of-

responsibility        reduction   is   generally   not   appropriate    when    a

defendant “puts the government to its burden of proof at trial by

denying the essential factual elements of guilt, is convicted, and

only then admits guilt and expresses remorse.”              U.S.S.G. § 3E1.1,


                                       -45-
cmt. (n. 2); see also United States v. Branch, 91 F.3d 699, 742

(5th Cir. 1996) (noting that “[w]hile conviction by trial does not

‘automatically preclude’ the availability of this [reduction], the

Guidelines contemplate that those cases in which the defendant both

accepts responsibility within the meaning of this section and goes

to trial will be ‘rare’”) (citations omitted).

     The district court did not find Becerra to be one of those

“rare” defendants who goes to trial and yet may fairly be said to

have accepted responsibility.      This determination, far from being

“without foundation,” appears well supported by the record.             As

Becerra’s counsel noted in his closing statement to the jury:

“Ruben Gil Becerra is here before you and he’s maintaining his

innocence . . . [t]here’s no evidence to show that he possessed

marijuana, no evidence whatsoever.”         On direct appeal, Becerra

continued to challenge the sufficiency of the evidence presented by

the government.    Whatever assistance Becerra may have provided to

the FBI post-arrest and pre-trial, Becerra’s overall approach to

the charges against him does not demonstrate an acceptance of

responsibility.    See id. (rejecting as “ludicrous” a defendant’s

suggestion that he was entitled to a three-level reduction for

acceptance   of   responsibility    when   he   provided   a   post-arrest

statement, but contested his factual guilt at trial, and even

proclaimed at sentencing that “we still stand on our innocence”).

We therefore find no error in the district court’s denial of a


                                   -46-
three-level, acceptance-of-responsibility reduction.

                                  VI

     For the foregoing reasons, the judgment of the district court

is, in all respects, AFFIRMED.




                                 -47-
