     Case: 14-11331      Document: 00513364186         Page: 1    Date Filed: 02/01/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                      No. 14-11331                                FILED
                                                                            February 1, 2016

UNITED STATES OF AMERICA,
                                                                             Lyle W. Cayce
                                                                                  Clerk

              Plaintiff–Appellee,

v.

JESSICA CHRISTINE BAGLEY,

              Defendant–Appellant.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:12-CR-188


Before PRADO, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       This is Defendant–Appellant Jessica Bagley’s second appeal regarding
her sentence. Previously, we vacated the district court’s restitution order and
remanded for modification consistent with our opinion. On remand, the district
court resentenced Bagley de novo and imposed a fine in lieu of restitution.
Bagley appeals again, now arguing that the district court was barred from
imposing a fine or otherwise modifying her sentence beyond removing its
restitution order. Because we agree, the fine is vacated.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 14-11331
          I.   FACTUAL AND PROCEDURAL BACKGROUND
      In November 2012, Bagley pleaded guilty to one count of possession of
counterfeit securities in violation of 18 U.S.C. § 513(a) and was sentenced to
37 months imprisonment and ordered to pay $7,917.56 in restitution. In its
written judgment, the district court noted that it did not impose a fine because
Bagley did not have the financial resources to pay one.
      Bagley appealed the district court’s restitution order, arguing that it was
not related to the conduct for which she was convicted. This Court agreed and
stated in conclusion: “[W]e VACATE the district court’s order of restitution and
REMAND to the district court for modification consistent with this opinion.”
United States v. Bagley, 578 F. App’x 343, 345 (5th Cir. 2014). The mandate
issued along with our opinion provided that “it is ordered and adjudged that
the judgment of the District Court is vacated, and the cause is remanded to the
District Court for further proceedings in accordance with the opinion of this
Court.”
      On remand, both Bagley and the Government argued that the district
court was confined by the mandate rule to only remove the order of restitution.
Nevertheless, the district court concluded that our opinion and mandate had
broadly intended to vacate the entirety of the sentence. At resentencing, the
district court gave Bagley the same term of imprisonment and, over counsel’s
objections, imposed a fine of $5,000. Bagley timely appealed.
                              II. DISCUSSION
    “The mandate rule . . . prohibits a district court on remand from
reexamining an issue of law or fact previously decided on appeal and not
resubmitted to the trial court on remand.” United States v. Pineiro, 470 F.3d
200, 205 (5th Cir. 2006) (per curiam) (footnote omitted). This Circuit has taken
a restrictive view of this principle. United States v. Marmolejo, 139 F.3d 528,
531 (5th Cir. 1998); see also United States v. Lee, 358 F.3d 315, 322–23 (5th
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                                 No. 14-11331
Cir. 2004). While other circuits permit a district court on remand to conduct
resentencing de novo unless otherwise directed, we take the opposite view.
Marmolejo, 139 F.3d at 531 (“This court specifically rejects the proposition that
all resentencing hearings following a remand are to be conducted de
novo unless expressly limited by the court in its order of remand.”); see also
Lee, 358 F.3d at 322–23, 223 n.4.
      Under our rule,
      [t]he only issues on remand properly before the district court are
      those issues arising out of the correction of the sentence ordered
      by this court. In short, the resentencing court can consider
      whatever this court directs–no more, no less. All other issues not
      arising out of this court’s ruling and not raised before the appeals
      court, which could have been brought in the original appeal, are
      not proper for reconsideration by the district court below.

Marmolejo, 139 F.3d at 531. Despite our narrow construction, we recognize
several exceptions to this rule. See Pineiro, 470 F.3d at 205. A district court
may deviate from our principle of “no more, no less” in the following situations:
“(1) [i]ntroduction of evidence at a subsequent trial that is substantially
different; (2) an intervening change in controlling authority; and (3) a
determination that the earlier decision was clearly erroneous and would work
a manifest injustice.” Id. at 205–06. “We review de novo a district court’s
interpretation of our remand order, including whether the law-of-the-case
doctrine or mandate rule forecloses any of the district court’s actions on
remand.” Id. at 204 (emphasis omitted).
      In our prior opinion, we stated that: “[W]e VACATE the district court’s
order of restitution and REMAND to the district court for modification
consistent with this opinion.” Bagley, 578 F. App’x at 345. The district court
interpreted this language as vacating the entirety of the sentence and inviting
resentencing de novo. We disagree. On its face, our prior instruction to the
district court did not invite a wholesale reconsideration of Bagley’s sentence.
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                                  No. 14-11331
Rather, we instructed the district court to modify Bagley’s sentence to reflect
our holding that its decision to impose restitution was in error.
      Nor was the issue of a fine “made newly relevant” by our ruling in
Bagley’s initial appeal. We have previously held that where an “issue is ‘made
newly relevant by the court of appeal’s decision,’” the district court may be
entitled to consider that issue on remand. Lee, 358 F.3d at 324–25 (quoting
United States v. Whren, 111 F.3d 956, 960 (D.C. Cir. 1997)). This principle,
however, does not apply so broadly that a district court may reconsider any
aspect of a sentence when part of that sentence is vacated on appeal. See
Marmolejo, 139 F.3d at 529–32. Here, the district court initially decided not to
impose a fine due to Bagley’s inability to pay. The issue of a fine was not raised
on appeal and our prior opinion did not discuss it. While the district court may
have thought that restitution was closely related to the issue of a fine, our
decision did not open the door for the court to reconsider an issue not raised by
the parties or ruled on by this Court on appeal.
      Finally, this case does not fall within one of the recognized exceptions to
the mandate rule. In its opposition, the Government suggests that the mandate
rule should not be strictly applied here because “the evidence on remand was
substantially different than the evidence at the first sentencing.” According to
the Government, the district court had new evidence on remand because the
Presentence Report (“PSR”) had been amended to note that absent an order of
restitution, Bagley could pay a fine if it was “at the low end of the guideline
range . . . provided she is allowed to make monthly installment payments.”
      First, this evidence was not new. Bagley’s financial situation and
potential for employment were the same at her initial sentencing as at her
resentencing. See Gene & Gene, L.L.C. v. Biopay L.L.C., 624 F.3d 698, 704–05
(5th Cir. 2010) (stating that the substantially different evidence exception does
not apply where the evidence was known or could have been discovered
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                                  No. 14-11331
through reasonable diligence). Second, the PSR addendum does not constitute
the type of substantially different evidence we have held triggers this
exception. See Comeaux v. Sutton, 496 F. App’x 368, 371 n.1 (5th Cir. 2012)
(per curiam) (holding that the exception for substantially different evidence
applied where “[e]xtensive evidence was added to the record after [the circuit
court’s] decision . . . , including [the plaintiff]’s deposition, the deposition of
[another witness], and the defendants’ depositions.”).
                             III. CONCLUSION
      For the foregoing reasons, we hold that the district court erred in
imposing a fine on remand. Accordingly, the district court’s order imposing a
fine of $5,000 is vacated.




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