March 9, 1993

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 92-1969

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                       RICHARD HARMON BELL,

                      Defendant, Appellant.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

             [Hon. Gene Carter, U.S. District Judge]
                                                   

                                             

                              Before

                      Selya, Circuit Judge,
                                          

                  Coffin, Senior Circuit Judge,
                                              

                    and Boudin, Circuit Judge.
                                             

                                             

     Sarah Jennings Hunt for appellant.
                        
     F. Mark Terison, Assistant United States Attorney, with whom
                    
Richard S. Cohen, United  States Attorney, was on brief,  for the
                
United States.

                                             

                          March 9, 1993

                                             

          SELYA, Circuit Judge.  This appeal asks, essentially, a
          SELYA, Circuit Judge.
                              

single  question:    Must  a  district  court,  at  a  reconvened

sentencing  hearing following  a  defendant's successful  appeal,

reexamine  its explicit findings and  conclusions on an issue not

raised in  the  appeal and  which  the defendant  had  previously

acknowledged  to be correctly decided?  Because we do not believe

that the district court  is under so wide-ranging  an obligation,

we affirm the judgment below.

                                I.
                                  

                        Prior Proceedings
                                         

          Defendant-appellant Richard Harmon Bell  pleaded guilty

to  an  indictment detailing  six  prior  felony convictions  and

charging  him with  receipt  and possession  of  a firearm  by  a

convicted  felon in violation  of 18  U.S.C.    922(g)(1) (1988).

Believing that  Bell met all  three criteria for  career offender

status,1 see, e.g.,  United States  v. Fiore,      F.2d    ,     
                                            

(1st Cir.  1992)  [No.  92-1601,  slip  op.  at  2]  (enumerating

criteria),  the  presentence  investigation report  (PSI  Report)

recommended imposition  of sentence under U.S.S.G.    4B1.1 (Nov.

1991).  While acknowledging  that he had committed the  gaggle of

crimes  attributed to  him  in the  PSI Report,  Bell nonetheless

objected to the  sentencing recommendation on the ground that the

crime of conviction was not a crime of violence.

                    

     1Bell  was more  than  eighteen years  old  at the  time  he
perpetrated  the offense of conviction; that  offense was a crime
of violence; and  his record contained six prior  convictions for
violent felonies.

                                2

          At the sentencing hearing,  Bell renewed this argument.

Withal,  his counsel declared no fewer than three times, and Bell

himself  stated at  least  twice, that  even  if Bell's  argument

prevailed, he would be subject to a mandatory minimum sentence of

15  years as his prior  convictions were sufficient  to place him

within  the purview of the  Armed Career Criminal  Act (ACCA), 18

U.S.C.     924(e)(1)  (1988)  (stipulating that  a  defendant  is

considered an  armed  career  criminal  if  he  has  three  prior

convictions for violent felonies and if the offense of conviction

is  possession of  a  firearm  which  has traveled  across  state

lines).    In  the  course of  the  sentencing  proceedings,  the

district court found that Bell had been convicted previously of a

half-dozen  violent crimes  listed in  the PSI  Report, including

assault  and battery  with  a dangerous  weapon, kidnapping,  and

various episodes of robbery.   The defendant lodged no  objection

to this finding; to  the exact contrary, statements made  by both

Bell  and his counsel  patefied its accuracy.   Nevertheless, the

court concluded that the offense of conviction was itself a crime

of violence as defined in U.S.S.G.    4B1.1 and sentenced Bell to

a prison term in excess  of 30 years as a career  offender rather

than  to a  shorter period  of incarceration  as an  armed career

criminal.

          Bell  appealed the  sentence.   On appeal,  his counsel

vigorously  disputed  whether  a  felon-in-possession  conviction

could lawfully  trigger the  career offender guideline.   Counsel

conceded,  however, that "based upon [Bell's] prior record, he is

                                3

subject to  an enhancement . .  . of 15  years to life  under the

Armed Career Criminal [Act]."  We bought counsel's wares, holding

"that, where the offense of conviction is the  offense of being a

convicted  felon   in  knowing  possession  of   a  firearm,  the

conviction  is not for a `crime of violence' and that, therefore,

the   career  offender   provision  of  the   federal  sentencing

guidelines does not apply."  United States v. Bell, 966 F.2d 703,
                                                  

703  (1st  Cir. 1992).   Hence,  we  vacated Bell's  sentence and

remanded for resentencing  in light of  our opinion.  See  id. at
                                                              

707.

          At the  resumed sentencing hearing, Bell  for the first

time sought  to challenge the  validity of his  prior convictions

and,  through that medium, his  ACCA status.   The district court

ruled that the objection was  untimely.  It sentenced Bell as  an

armed career criminal.  This appeal ensued.

                               II.
                                  

                            Discussion
                                      

          Bell strives gallantly to persuade us that the district

court was obliged to  entertain his belated challenge to  some or

all of  the six  predicate convictions;  or, in  the alternative,

that the  court abused its discretion  in refusing to do  so.  We

find both parts of this asseverational array unconvincing.

                                A.
                                  

          The   first  of   appellant's  contentions   is  easily

dispelled.  An appellate court's disposition of an appeal must be

read  against the backdrop of prior proceedings in the case.  See
                                                                 

                                4

United States v.  Cornelius, 968  F.2d 703, 706  (8th Cir.  1992)
                           

(explaining that  a remand does not  automatically rejuvenate the

entire  case); United States v.  DeJesus, 752 F.2d  640, 643 (1st
                                        

Cir. 1985) (per  curiam) (similar); see  also Kotler v.  American
                                                                 

Tobacco Co., 981 F.2d  7, 13-14 (1st Cir. 1992)  (outlining rules
           

governing  appellate  court's power  to  reconsider  an issue  on

remand  from the  Supreme  Court).   It  follows, then,  that  in

determining whether a  trial court  is duty bound  to rethink  an

issue foregone  in an earlier  appeal, the court  "must implement

both the letter and spirit of the [previous] mandate, taking into

account the  appellate court's  opinion and the  circumstances it

embraces."  United  States v. Kikumura, 947 F.2d  72, 76 (3d Cir.
                                      

1991) (citation and  internal quotation marks omitted).  We apply

these tested tenets in the instant case.

          Here, our  mandate disposing of Bell's  original appeal

directed  the   district  court   to  conduct   resentencing  "in

accordance  with the opinion issued" in that appeal.  The context

of  that  order  was  the  opinion  itself     an  opinion  which

discussed,  in some  detail, see  Bell, 966  F.2d at  704-07, the
                                      

single issue that appellant chose to proffer.  The opinion relied

on  Bell's   eschewal  of  any  other   challenge  and  virtually

foreclosed  the argument  he now  belatedly advances.    We wrote

that, if the district court had not erroneously "sentenced [Bell]

as  a   career  offender  under  section   4B1.1,  the  guideline

sentencing range apparently  would have  been much  lower and  he

would, in all  probability, have  been sentenced to  15 years  in

                                5

prison  (the  mandatory minimum  sentence  under  the statute  of

conviction)."  Id.  at 704.   It is  readily evident,  therefore,
                  

that  neither the  letter  nor  the  spirit  of  our  mandate  is

consistent   with  the  turnaround   that  Bell  proposes  today:

starting  the sentencing  pavane  from scratch  following remand.

Rather than obligating the district court to examine the validity

of Bell's previous  convictions, our  mandate, read  in the  most

plausible manner, constrained the district court from considering

on remand  a collateral  challenge that  defendant had,  from all

appearances, deliberately bypassed.  

          The black  letter rule governing  this point is  that a

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

unchallenged  in a  subsequent  appeal despite  the existence  of

ample 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.  See Williamsburg Wax Museum, Inc.
                                                                 

v.  Historic Figures, Inc., 810  F.2d 243, 250  (D.C. Cir. 1987);
                          

see also  United States  v. Duchi,  944 F.2d  391, 393  (8th Cir.
                                 

1991)  (standing  for  the  proposition  that  arguments  in  the

alternative,  like other  challenges, must  be brought  before an

appellate  court lest  an ensuing  ruling become  the law  of the

case).   Abandoning this prudential principle  would threaten the

important policy  considerations underlying  the law of  the case

doctrine,  such  as  "stability  in  the decisionmaking  process,

predictability  of results, proper  working relationships between

                                6

trial and appellate courts, and judicial economy."  United States
                                                                 

v. Rivera-Martinez, 931  F.2d 148, 151 (1st  Cir.), cert. denied,
                                                                

112 S. Ct. 184 (1991).

                                B.
                                  

          Even where, as here,  an appellate court's mandate does

not contemplate  resurrecting an issue on remand, the trial court

may  still possess some limited discretion to reopen the issue in

very  special situations.   See id. at  150-52; Cochran v.  M &amp; M
                                                                 

Transp. Co., 110  F.2d 519, 521 (1st Cir. 1940).   After all, the
           

so-called "mandate rule," generally requiring conformity with the

commands  of a  superior court  on remand,  is simply  a specific

application of  the law of the  case doctrine and, as  such, is a

discretion-guiding rule subject to an occasional exception in the

interests of justice.   See, e.g., Johnson v. Uncle  Ben's, Inc.,
                                                                

965 F.2d 1363, 1370 (5th Cir. 1992), petition for cert. filed, 61
                                                             

U.S.L.W. 3356 (U.S. Sept. 29, 1992) [No. 92-737]; Jones v. Lewis,
                                                                

957  F.2d 260,  262  (6th Cir.),  cert.  denied, 113  S. Ct.  125
                                               

(1992); United States v.  Miller, 822 F.2d 828, 832-33  (9th Cir.
                                

1987); Piambino  v. Bailey,  757  F.2d 1112,  1119-20 (11th  Cir.
                          

1985), cert.  denied, 476  U.S. 1169  (1986); Continental  Bank &amp;
                                                                 

Trust Co. v.  American Bonding Co., 630  F.2d 606, 608  (8th Cir.
                                  

1980);  Cleveland v.  FPC, 561  F.2d 344,  348 (D.C.  Cir. 1977);
                         

Banco Nacional de Cuba v. Farr, 383 F.2d 166, 178 (2d Cir. 1967),
                              

cert.  denied, 390 U.S. 956 (1968); see  also Kotler, 981 F.2d at
                                                    

13 (on remand, lower court ordinarily retains the "naked power to

reexamine"  a  closed  issue,  but  should  exercise  such  power

                                7

"sparingly  and  only  when .  .  .  necessary  to avoid  extreme

injustice").    In  other words,  because  the  law  of the  case

doctrine  is a  rule  of  policy  and  practice,  rather  than  a

jurisdictional limitation, it may tolerate a "modicum of residual

flexibility" in exceptional circumstances.   Rivera-Martinez, 931
                                                            

F.2d  at 151; see also Cochran,  110 F.2d at 521 (warning against
                              

allowing the  law of the case doctrine to become an instrument of

injustice).   Assuming this  to be  the law,2  we turn  to Bell's

fallback claim that the district court, in its discretion, should

have  entertained  his  challenge  to  the  myriad  of  predicate

offenses.

          Here,  reopening an  already  decided matter  cannot be

justified.   At a minimum,  reopening would require  a showing of

exceptional circumstances    a threshold which,  in turn, demands

that the proponent  accomplish one  of three things:   show  that

controlling  legal  authority has  changed  dramatically; proffer

significant new evidence, not  earlier obtainable in the exercise

of due diligence; or convince  the court that a blatant  error in

the prior  decision will,  if  uncorrected, result  in a  serious

injustice.     See,  e.g.,  Rivera-Martinez,  931   F.2d  at  151
                                           

                    

     2The  commentators have noted considerable uncertainty about
whether a district court is always obligated to conform the scope
                                  
of its  inquiry  on remand  with the  appellate court's  mandate.
See, e.g., 18 C. Wright, et al., Federal Practice and Procedure  
                                                               
4478, at  793 &amp; n.15  (1981 &amp; Supp.  1992).  We  believe that the
weight of logic and authority pushes against so rigid a position,
but  we need  not decide  the issue  squarely; even  assuming the
existence  of   residual  discretion,  we  find   no  exceptional
circumstances  that  would warrant  the  court  below in  peering
behind our original mandate.

                                8

(collecting cases); United States v. Rosen, 929 F.2d 839, 842 n.5
                                          

(1st Cir.), cert. denied, 112 S. Ct. 77 (1991); DeJesus, 752 F.2d
                                                       

at 642;  see also Marin Piazza  v. Aponte Roque, 909  F.2d 35, 38
                                               

(1st Cir.  1990).    Bell met  none  of these  benchmarks.    The

relevant  legal   authority  has  not  changed.3     The  belated

challenge to the predicate  offenses is, at best, conclusory  and

self-serving; no hard  evidence has  been adduced  from which  it

could  be  concluded  that  four  or  more  of  Bell's  predicate

convictions were  infirm; and, moreover, no  credible explanation

has been offered  for Bell's failure to assert the challenge in a

more  timely fashion.  Finally, no manifest injustice looms.  The

district  court  was  not  faced  with  an  isolated instance  of

inadvertent  oversight on  the part  of a  beleaguered defendant.

Bell  was represented  by able  counsel throughout.   He  and his

lawyer  confirmed the  district court's  findings and  conclusion

time and again.  He passed up numerous opportunities for mounting

the challenge  he now wishes to press.  Last, but far from least,

there is no real reason to believe that Bell is exempt from armed

career  criminal status.  In  the circumstances of  this case, we

simply cannot  fault the district  court for declining  to reopen

the record.

                    

     3It  is true that  United States v.  Paleo, 967 F.2d  7 (1st
                                               
Cir.  1992), a case dealing with a district court's discretion to
consider collateral attacks  on prior convictions at  sentencing,
postdated Bell's  first appeal.  As  appellant concedes, however,
Paleo was no  bolt from the  blue.  We  had suggested on  several
     
previous occasions  that such challenges were  permissible.  See,
                                                                
e.g.,  United  States v.  Patrone, 948  F.2d  813, 817  (1st Cir.
                                 
1991), cert. denied,  112 S.  Ct. 2953 (1992);  United States  v.
                                                             
Unger, 915 F.2d 759, 761-62 (1st Cir. 1990), cert. denied, 111 S.
                                                         
Ct.  1005  (1991); see  also Paleo,  967  F.2d at  11 (collecting
                                  
caselaw from five other circuits holding to like effect).

                                9

III.  CONCLUSION

          We need go no  further.  The law  of the case  doctrine

dictates that all litigation must  sometime come to an end.   See
                                                                 

Arizona v. California, 460 U.S. 605, 619 (1983).  Here, appellant
                     

has provided us  with no valid reason to depart  from this policy

and overturn the district court's refusal to resuscitate an issue

previously agreed upon and decided in the case.

Affirmed.
        

                                10
