                             NONPRECEDENTIAL DISPOSITION
                              To be cited only in accordance with
                                       Fed. R. App. P. 32.1


           United States Court of Appeals
                                     For the Seventh Circuit
                                     Chicago, Illinois 60604

                                    Submitted March 25, 2010*
                                      Decided May 7, 2010

                                             Before

                                FRANK H. EASTERBROOK, Chief Judge

                                KENNETH F. RIPPLE, Circuit Judge

                                TERENCE T. EVANS, Circuit Judge



Nos. 09-2404 & 09-2405

UNITED STATES OF AMERICA,                             Appeals from the United States
                                                      District Court for the Northern
       Plaintiff-Appellee,                            District of Illinois, Eastern Division.

                                       v.             No. 1:04-cr-00522

JAIME ANDRADE and MARIBEL
MIRAMONTES,                                           David H. Coar, Judge.

       Defendants-Appellants.

                                            ORDER

        In this successive appeal, Jaime Andrade and Maribel Miramontes contend that the
district court erred by denying their motion to dismiss the indictment. We conclude that the



       *
        This successive appeal has been submitted to the original panel under Operating
Procedure 6(b). After examining the briefs and the record, we have concluded that oral
argument is unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f).
Nos. 09-2404 & 09-2405                                                                          Page 2


motion was outside the scope of our remand order, and that the defendants waived their rights
to challenge the indictment. We therefore affirm the district court's order denying their
motion.

        Mr. Andrade and Ms. Miramontes were convicted of drug violations, pursuant to 21
U.S.C. §§ 841(a)(1) and 846, and they appealed their sentences on various grounds. See United
States v. Andrade, 295 Fed. Appx. 64 (7th Cir. 2008). We denied Ms. Miramontes’s contention
that the district court erred by finding that her crime involved crack cocaine. Id. at 67-68.
However, we vacated Mr. Andrade’s and Ms. Miramontes’s sentences and remanded for
resentencing in light of Kimbrough v. United States, 552 U.S. 85 (2007). See Andrade, 295 Fed.
Appx. at 68-69. Our remand order contained specific and circumscribed instructions. With
respect to Ms. Miramontes, we explained:

       Because Ms. Miramontes originally was sentenced after the amended guidelines
       for cocaine became effective, the district court should employ those guidelines
       in calculating Ms. Miramontes’ sentence on remand. After the sentence is
       calculated using the amended guidelines, the district court may then consider
       whether any further reduction, in light of Kimbrough, is warranted.

Id. at 68. With respect to Mr. Andrade, we noted that he had been sentenced prior to the
adoption of the guideline amendments for crack cocaine. Accordingly, we explained:

       Similar to the procedure set forth in [United States v. Taylor, 520 F.3d 746 (7th Cir.
       2008)], the district court must decide whether, in response to a motion by the
       defendant or on the court’s own motion, relief under the new guidelines is
       appropriate. Regardless of the district court’s action with respect to the motion-
       -whether it determines that no relief under the Guidelines should be granted or
       it decides to impose a new sentence under the amended guideline--the
       defendant’s sentence still must be evaluated in light of Kimbrough.

Id. at 69. We vacated the judgments of the district court and remanded for resentencing
according to the procedures set forth in our order. Id.

        On remand, Mr. Andrade and Ms. Miramontes filed a motion to dismiss the indictment,
on the ground that the mandatory minimum sentencing regime of 21 U.S.C. § 841(b) violated
their constitutional rights. They contended primarily that the 100:1 ratio of crack-cocaine to
powder cocaine mandatory minimum penalties (1) is arbitrary and without rational basis, thus
violative of the Due Process Clause of the Fifth Amendment to the United States Constitution,
and (2) produces a disparate impact on African-American and Hispanic defendants, thus
violative of the Equal Protection Clause of the Fourteenth Amendment. The Government
Nos. 09-2404 & 09-2405                                                                       Page 3


opposed the motion on the ground that its subject matter was beyond the scope of our limited
remand. The Government also contended that, pursuant to Federal Rule of Criminal
Procedure 12, the defendants had waived their rights to bring such a motion by failing to raise
it before trial. Finally, and in any event, the Government contended that the motion had no
merit and cited our previous consideration and rejection of the constitutional arguments in
United States v. Lawrence, 951 F.2d 751, 755 (7th Cir. 1991), and United States v. Chandler, 996 F.2d
917, 918 (7th Cir. 1993). During the resentencing hearing, the district court denied the motion
without comment, see Tr. at 2, Apr. 28, 2009, and issued a minute entry confirming the denial,
see R.172. The district court resentenced the defendants according to our remand instructions.

        Mr. Andrade and Ms. Miramontes now appeal the denial of their motion to dismiss.
They repeat the arguments they made to the district court about the constitutionality of 21
U.S.C. § 841(b). They also contend that since our remand order vacated their sentences, they
were free to raise new and old sentencing arguments during the remand proceedings. They
do not respond to the Government’s contention that they waived their rights to contest the
constitutionality of § 841(b) by failing to raise that issue prior to trial. We conclude that the
district court properly denied the motion.

        Pursuant to 28 U.S.C. § 2106, we may limit the scope of our remand orders. If we
identify “a discrete, particular error that can be corrected on remand without the need for a
redetermination of other issues, the district court is limited to correcting that error.” United
States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996). This is commonly referred to as the mandate
rule. See United States v. Polland, 56 F.3d 776, 777 (7th Cir. 1995) (“The mandate rule requires
a lower court to adhere to the commands of a higher court on remand.”). Although there is
no formula for determining a remand order’s scope, the language of the remand order controls.
See United State v. White, 406 F.3d 827, 831 (7th Cir. 2005). Here, the district court properly
interpreted our remand order as directing consideration only of the Kimbrough issue and
related sentencing matters. We believe the district court denied the motion to dismiss as
outside the scope of our limited remand order. The denial was proper.

        The motion to dismiss was also improperly raised on remand because the challenge to
the indictment was not raised during the initial district court proceedings. Cf. United States v.
Triplett, No. 92-1701, 1992 WL 386851, at *6 (7th Cir. Dec. 29, 1992) (noting that a defendant
waived his right to challenge the constitutionality of § 841(b) by not raising it before he filed
his appeal, although addressing the new arguments because the Government waived the
defendant’s waiver). Furthermore, even if the traditional waiver bar had not applied in this
case, the failure of Mr. Andrade and Ms. Miramontes to raise their constitutional challenges
in their initial appeal waived their right to raise those issues during the remand proceedings.
See Parker, 101 F.3d at 528 (“A party cannot use the accident of a remand to raise in a second
appeal an issue that he could just as well have raised in the first appeal because the remand
Nos. 09-2404 & 09-2405                                                                  Page 4


did not affect it.”). While we have been careful not to issue overly restrictive remand orders,
see White, 406 F.3d at 831-32, we have consistently held that new arguments, outside the scope
of the plain language of a limited remand order, shall be treated as waived, see United States
v. Schroeder, 536 F.3d 746, 751-52 (7th Cir. 2008).

       Accordingly, we AFFIRM the district court’s denial of the motion to dismiss.

                                                                                  AFFIRMED
