                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 26, 2014
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                         No. 13-7040
 v.                                           (D.C. No. 6:12-CR-00040-RAW-1)
                                                         (E.D. Okla.)
 LANDRY SEAN LAKE,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, HOLLOWAY, and PHILLIPS, Circuit Judges.


      In this direct criminal appeal, Defendant-Appellant Landry Lake asks us to

vacate his sentence and to remand for re-sentencing. We have jurisdiction under

28 U.S.C. § 1291.

                                         I.

      Mr. Landry Lake pleaded guilty, without a plea agreement, to a single

charge of “conspiracy to possess with intent to distribute and [to] distribute

controlled substances” in violation of 21 U.S.C. § 846. Also named in the one-


      *
        This order and judgment is not binding precedent except under the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.
count indictment was Ramon Lake, who is Landry Lake’s father. 1 Landry Lake

was sentenced to 97 months’ imprisonment, three years of supervised release, and

payment of a special assessment of one hundred dollars. Ramon Lake had

previously been sentenced to a term of imprisonment of 135 months, which this

court reversed.

      The only drug quantity mentioned in either the indictment or the

presentence report (PSR) was 5.27 grams. The comparatively lengthy sentences

handed down by the district court were not based on any findings regarding the

amount of drugs involved. Instead, in both men’s cases the base offense level for

the charged crime was determined under U.S.S.G. § 2D1.1(a)(2), which provides

that for certain drug crimes, including the one charged against the two defendants

in this case, the offense level is 38 if “the offense of conviction establishes that

death or serious bodily injury resulted from the use” of the controlled substance

involved. This enhancement was based on the fact that a friend of Landry Lake

had been found dead of an accidental overdose of heroin. His body had been

found within hours of Ramon Lake’s receipt of a shipment of heroin from Landry

Lake and the deceased man’s subsequent visit to the home of Ramon Lake.

                                          II.



      1
       Ramon Lake brought an appeal decided by a panel of this court last year,
as discussed in the text, infra. United States v. Ramon Lafayette Lake, 530 F.
App’x 831 (10th Cir. 2013) (unpublished).

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      We review criminal sentences under a “deferential abuse of discretion

standard.” United States v. Gall, 552 U.S. 38, 51 (2007). This review “includes

both a procedural component, encompassing the method by which a sentence was

calculated, as well as a substantive component, which relates to the length of the

resulting sentence.” United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008).

Failing to properly calculate the sentencing range under the advisory Sentencing

Guidelines is one type of procedural error. Gall, 552 U.S. at 51.

      Landry Lake contends that the district court committed a procedural error

by enhancing the offense level for his crime under the provisions of U.S.S.G. §

2D1.1(a)(2). In the earlier appeal of Ramon Lake, the government conceded that

the district court had erred in increasing the offense level under that Guideline

provision. A panel of this court accordingly reversed and remanded for re-

sentencing of Ramon Lake. Landry Lake now asks us to rule similarly here.

      Under the doctrine of the law of the case, “when a case is appealed and

remanded, the decision of the appellate court establishes the law of the case and

ordinarily will be followed by both the trial court on remand and the appellate

court in any subsequent appeal.” United States v. Alvarez, 142 F.3d 1243, 1247

(10th Cir. 1998). Moreover, “when a rule of law has been decided adversely to

one or more codefendants, the law of the case doctrine precludes all other

codefendants from relitigating the legal issue.” United States v. LaHue, 261 F.3d

993, 1010 (10th Cir. 2001) (quoting United States v. Aramony, 166 F.3d 655, 661

                                         -3-
(4th Cir. 1999)). We think it beyond question that the doctrine may apply against

the government as well as against co-defendants.

      We have, however, identified three “exceptionally narrow circumstances”

in which we will not apply the law of the case: “(1) when the evidence in a

subsequent trial is substantially different; (2) when controlling authority has

subsequently made a contrary decision of the law applicable to such issues; or (3)

when the decision was clearly erroneous and would work a manifest injustice.”

Alvarez, 142 F.3d at 1247.

      We conclude that none of these exceptions are applicable here. The

government in this appeal argues that its confession of error in the appeal of

Ramon Lake was itself erroneous. Shortly before the United States filed its brief

in the appeal of Ramon Lake, the Supreme Court had announced its decision in

Alleyne v. United States, 133 S. Ct. 2151 (2013). That case held that it was an

infringement of Sixth Amendment rights for a defendant to be subjected to a

higher, statutory minimum sentence than would otherwise have been applicable if

the basis for the increase was not subject to a jury finding under the beyond a

reasonable doubt standard.

      In the appeal of Ramon Lake, the government conceded that Alleyne

applied not just to findings which increased the statutory minimum sentence, but

also to findings that increased a defendant’s advisory guidelines sentencing




                                         -4-
range. 2 The government’s current position, as we understand it, is that Alleyne is

limited to mandatory minimum sentences prescribed by statute and does not apply

to cases like the present case, nor should it have applied to that of Ramon Lake.

      This is an issue that we will not reach. As noted supra, we may decline to

apply the law of the case doctrine if the previous decision was “manifestly

erroneous and would work a manifest injustice.” Alvarez, 142 F.3d at 1247

(emphasis added). Even if we were to assume, arguendo, that the holding of the

panel in the appeal of Ramon Lake was manifestly erroneous (an assumption that

we do not make because this panel is not free to overrule the holding of another

panel), we could still see no manifest injustice in remanding Landry Lake’s

appeal for re-sentencing.

      The government also argues that Landry Lake forfeited any challenge to the

procedural reasonableness of his sentence. But the law of the case argument was

not available to Landry Lake when he was sentenced, as this court had not yet

issued its ruling in Ramon Lake’s appeal. Therefore, applying the law of the

case, we hold that the sentence imposed by the district court was procedurally

unreasonable.



      2
       Under that interpretation of Alleyne, Ramon Lake’s sentence was viewed
as invalid because, as described in the text supra, the offense level had been
based on a finding that the crime involved the death of another person. But the
death of another person was not subject to a jury finding under the beyond a
reasonable doubt standard.

                                        -5-
     Accordingly, the sentence of Landry Lake imposed by the district court is

REVERSED, and this cause is REMANDED FOR RE-SENTENCING.



                                    ENTERED FOR THE COURT



                                    William J. Holloway, Jr.
                                    Circuit Judge




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