                                                                              FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                      UNITED STATES COURT OF APPEALS February 14, 2020
                                                                     Christopher M. Wolpert
                                       TENTH CIRCUIT                     Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
                                                              No. 19-4000
 v.                                              (D.C. No. 2:11-CR-00501-DB-PMW-1)
                                                               (D. Utah)
 JEREMY DAVID JOHNSON,

               Defendant - Appellant.


                              ORDER AND JUDGMENT*


Before MORITZ, McKAY, and CARSON, Circuit Judges.


       In this appeal, Defendant Jeremy Johnson challenges the district court’s decision

not to conduct a de novo resentencing on remand from a prior appeal.

       At the conclusion of a six-week jury trial, Defendant was found guilty on eight

counts of making a false statement in violation of 18 U.S.C. § 1014. Prior to sentencing,

the parties extensively briefed various sentencing issues, particularly focusing on the

question of loss, which Defendant recognized to be “[b]y far[] the most important factor

in [his] sentencing.” (Appellee’s Suppl. App. at 838.) At his sentencing



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
hearing—conducted by the same district judge who had presided over his lengthy jury

trial—the district court heard additional arguments from the parties before finding the

amount of loss to be approximately $1.67 million, which resulted in a sixteen-level

enhancement under U.S.S.G. § 2B1.1(b)(1)(I). Based on this and other enhancements,

including a two-level enhancement for deriving more than $1 million in gross receipts

from a financial institution, see U.S.S.G. § 2B1.1(b)(17)(A), the court calculated a total

offense level of 33, with a corresponding advisory sentencing range of 135–168 months.

The court ultimately imposed a bottom-of-the-guidelines sentence of 135 months.

       Defendant appealed his convictions and sentence to this court. See United States

v. Johnson, 732 F. App’x 638 (10th Cir. 2018). Among other issues, he raised several

arguments regarding the district court’s calculation of loss under U.S.S.G. § 2B1.1(b)(1).

We declined to address some of these arguments based on waiver and rejected the rest on

the merits. Johnson, 732 F. App’x at 659–62. We also affirmed Defendant’s convictions

and rejected his challenge to another sentencing enhancement. Id. at 642, 662–64.

However, we concluded that the district court had erred in imposing the two-level “gross

receipts” enhancement, and we reversed and remanded for resentencing based on this

error. Id. at 664.

       On remand, the original sentencing judge recused himself, and the case was

assigned to a different district judge. The government argued that the resentencing court

should simply reduce the previously calculated offense level by two, resulting in an


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advisory guideline range of 108–135 months, and impose a sentence based on this range.

Defendant contended that the court should instead conduct a de novo resentencing,

specifically hearing new evidence on the question of loss and recalculating the loss figure

de novo. In response, the government took the position that the district court had

discretion to conduct a de novo resentencing but should decline to do so.

       At the resentencing hearing, the court began by “recogniz[ing] that under these

circumstances . . . this Court has discretion what to do and how far to go in conducting

this sentencing hearing today.” (Appellant’s App. at 357–58.) The court stated that it

was strongly inclined to limit sentencing to the two-level enhancement that was the

reason for the Tenth Circuit’s remand, but it heard arguments from both parties on this

point before ultimately deciding not to conduct a de novo resentencing. In explaining

why it would not conduct a de novo resentencing, the resentencing court noted that, as

this court had explained on appeal, the original sentencing judge was in a “unique

position to assess the evidence and estimate the loss” after presiding over the six-week

jury trial and conducting Defendant’s sentencing proceeding; moreover, the resentencing

court noted that this court had affirmed the loss calculation as “a reasonable estimate of

the loss” on appeal. Johnson, 732 F. App’x at 661 (internal quotation marks omitted).

The resentencing judge told Defendant: “You’re asking me now to re-plow that ground

that [the original sentencing judge] plowed[,] . . . and we would spend the next 90 days, at

least, trying to figure it out.” (Appellant’s App. at 364.) Thus, based primarily on the


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original sentencing judge’s much more extensive experience with this case and the fact

that his loss estimate had been upheld by this court on appeal, the resentencing court ruled

that it would not “allow an evidentiary hearing to go over what has already been done.”

(Id. at 362.) The resentencing court then calculated a new offense level of 31, with an

advisory guideline range of 108–135 months, and imposed a below-guidelines sentence of

87 months of imprisonment based on “what [it saw] as some humility and some ability to

be a law-abiding citizen” in Defendant. (Id. at 376–78.)

       On appeal, Defendant argues that the resentencing court abused its discretion by

declining to conduct a de novo resentencing focused on the issue of loss.

       When a remand order does not direct the district court either to conduct a de novo

resentencing or to limit the extent of resentencing, “[t]he district court is . . . under no

obligation to conduct a de novo sentencing, although it is within its discretion . . . to do

so.” United States v. Moore, 83 F.3d 1231, 1235 (10th Cir. 1996). “It could be that on

remand, the district court will determine that common sense and efficiency dictate

sentencing de novo.” Id. “On the other hand, in the exercise of its discretion, the district

court could resolve not to entertain new arguments and evidence and simply rely on the

original briefing and arguments.” Id. Either way, the district court has the discretion to

“determine the parameters of the resentencing hearing.” Id.

       “A district court abuses its discretion when it renders an arbitrary, capricious,

whimsical, or manifestly unreasonable judgment.” United States v. Silva, 889 F.3d 704,


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709 (10th Cir. 2018) (internal quotation marks omitted). “A district court’s decision will

be reversed ‘only if the court exceeded the bounds of permissible choice, given the facts

and the applicable law in the case at hand.’” Id. (quoting United States v. McComb, 519

F.3d 1049, 1053 (10th Cir. 2007)). “That is to say, we recognize that in many cases there

will be a range of possible outcomes the facts and law at issue can fairly support; rather

than pick and choose among them ourselves, we will defer to the district court’s judgment

so long as it falls within the realm of these rationally available choices.” McComb, 519

F.3d at 1053. “And there are perhaps few arenas where the range of rationally

permissible choices is as large as it is in sentencing.” Id.

       As an initial matter, Defendant suggests that the resentencing court legally erred by

failing to recognize its discretionary authority to conduct a de novo resentencing. See

Moore, 83 F.3d at 1235. This argument rests on two record citations that are taken out of

context. First, Defendant cites the resentencing court’s statement that holding an

evidentiary hearing on loss would not be “consistent with what the law of the case is and

how [the original sentencing judge] saw this case” (Appellant’s App. at 377), and he

argues that this shows that the district court incorrectly believed that the law of the case

precluded it from conducting a de novo resentencing. Second, Defendant quotes the

district court’s statement—made immediately after the court explained its reasons for

imposing a below-guidelines sentence and before it reiterated why it would not reopen the

issue of loss—that “[t]hey can appeal me on this. This is not the solidest ground I could


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be on.” (Id.)

       Neither of these statements calls into question all of the other record evidence that

the district court fully recognized its discretionary authority to conduct a de novo

resentencing but declined to do so here as a discretionary matter.1 In context, the district

court did not suggest that the law of the case precluded it from conducting a de novo

resentencing; rather, the court referred to the law of the case to explain why it was

persuaded that it should not exercise its discretion to reopen an issue that had already

been resolved in the earlier proceeding and affirmed on appeal.2 As for the district

court’s statement that “[t]hey can appeal me on this” (id.), this statement appears to refer

to the immediately preceding discussion of the downward variance rather than to the

       1
          On appeal, the government argues that the district court’s discretion was in fact
constrained by the law-of-the-case doctrine and/or the mandate rule. The government
contends that we can thus affirm the district court’s denial of a de novo resentencing
proceeding on the alternative ground that the district court lacked the authority to conduct
such a proceeding in the first place. This argument is contrary to the position the
government took below, and we decline to address it in the first instance on appeal.
Rather, assuming for purposes of decision that the district court had discretion to conduct
a de novo resentencing on remand, we conclude that this discretion was not abused when
the district court declined to conduct such a proceeding here.
       2
        Defendant argues that this court “did not decide the loss amount on the merits” in
the previous appeal. (Appellant’s Reply Br. at 7.) This argument is based on a
mischaracterization of our previous opinion. Although certain of Defendant’s loss
arguments in the previous appeal were waived and thus not addressed, we found several
other arguments on loss to be “adequately briefed” and rejected all of these argument “on
the merits,” squarely holding that “the district court made a ‘reasonable estimate of the
loss.’” Johnson, 732 F. App’x at 642, 659–62 (quoting United States v. Mullins, 613 F.3d
1273, 1292 (10th Cir. 2010)). Regardless of whether or not Defendant’s current
arguments relating to loss were addressed on the merits in the previous appeal, the fact
remains that this court affirmed the original loss calculation in that appeal.

                                             -6-
subsequent discussion regarding the denial of an evidentiary hearing. After Defendant

requested a downward departure or variance at resentencing based in part on post-

incarceration rehabilitation, the government argued that the evidence of Defendant’s

supposed reformation was flimsy at best: although Defendant asserted that he had

become a changed man in prison, the evidence showed that “as of earlier this year he was

violating prison rules simply because he didn’t think they should apply to him.” (Suppl.

App. at 1374.) In announcing its sentence, the district court explained to Defendant that

it was varying downward based on “what [it saw] as some humility and some ability to be

a law-abiding citizen and not have to be the biggest deal in town and have schemes going

that allow you to have your helicopters and your great lifestyle and your 20,000-square-

foot home.” (Appellant’s App. at 377.) It was immediately after this explanation that the

court told Defendant—still addressing him as “you”—that “they” might appeal “this”

because it was “not the solidest ground.” (Id.) Thus, in context, this statement appears to

refer to the fact that the government could appeal the below-guidelines sentence based on

the flimsiness of the evidence in support of the rehabilitation rationale, rather than to the

court’s subsequent explanation as to why it was not reopening the issue of loss.

Moreover, even under Defendant’s interpretation, this statement simply does not support

his argument that the district court was unaware of its discretionary authority to conduct a

de novo resentencing.

       The rest of Defendant’s arguments on appeal are focused on the merits of his


                                             -7-
challenges to the original loss calculation. Relying primarily on arguments that he did not

raise in the original sentencing proceeding, as well as certain arguments that were rejected

by the first sentencing court and/or this court, he argues that the loss calculation was so

blatantly wrong that the only permissible choice the court could make at resentencing was

to reopen the issue of loss so he could relitigate this issue. However, the only cases

Defendant cites in support of this argument are inapposite cases discussing when plain

error requires reversal on appeal. See, e.g., Rosales-Mireles v. United States, 138 S. Ct.

1897 (2018). None of these cases disturb our precedential holding that, in the absence of

a specific mandate, a resentencing court has “no obligation to conduct a de novo

sentencing” and may, “in the exercise of its discretion, . . . resolve not to entertain new

arguments and evidence and simply rely on the original briefing and arguments.” Moore,

83 F.3d at 1235. Defendant provides no persuasive support for his argument that this

discretion is constrained where a party points to an allegedly blatant error that somehow

escaped notice in both the original sentencing proceeding and on appeal, and we are not

persuaded that the district court’s discretion should be so limited. See United States v.

West, 646 F.3d 745, 749 (10th Cir. 2011) (“[T]he scope of the mandate on remand in the

Tenth Circuit is carved out by exclusion: unless the district court’s discretion is

specifically cabined, it may exercise discretion on what may be heard.”).

       The resentencing court decided to exercise its discretion not to conduct a de novo

resentencing in this case because Defendant sought to reopen an issue he had already had


                                             -8-
the opportunity to litigate before the original sentencing judge—who had much greater

familiarity with the case than the resentencing judge—and on appeal. We are not

persuaded that this discretionary decision fell outside the wide range of “rationally

permissible choices” available to the court. McComb, 519 F.3d at 1053.

       We accordingly AFFIRM the district court’s sentencing decision.

                                                  Entered for the Court



                                                  Monroe G. McKay
                                                  Circuit Judge




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