
USCA1 Opinion

	




          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.                                          I.                                          __                                  Prior Proceedings                                  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.                                         II.                                         ___                                      Discussion                                      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.                                          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.                                          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 & 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 &                 _____  ______                          ___________________          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 & n.15  (1981 & 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          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.          Affirmed.          ________                                          10
