                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  August 2, 2004

                     __________________________           Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-41145
                     __________________________


UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

                               versus


KERRY LERON BASS,

                                               Defendant-Appellant.

         ___________________________________________________

             Appeal from the United States District Court
                  for the Southern District of Texas
                             (No. V-94-1)
         ___________________________________________________

Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM:*

     In his latest appeal, Defendant-Appellant Kerry L. Bass argues

that he is entitled to a new sentencing hearing and recalculation

of the applicable offense level after our decision in United States

v. Bass, 310 F.3d 321 (5th Cir. 2002) (WIENER, J.) (“Bass I”).         We

vacate his sentence and remand for resentencing.




     *
        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that this opinion should not be published and is not precedent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.
                          I.    FACTS & PROCEEDINGS

      Our prior opinion in Bass I describes in detail the background

facts,1 so we repeat here only that which is germane to this

appeal.        In 1994, Bass was charged with 15 federal narcotics and

tax   violations,      including    one    count   of   participation     in    a

continuing criminal enterprise (“CCE”).            After he was convicted on

all counts, the district court sentenced Bass to ten 360-month

terms     of    imprisonment,   followed   by   five    years   of   supervised

release; one 120-month term of imprisonment, followed by three

years of supervised release; four 12-month terms of imprisonment,

followed by one year of supervised release; and a $650 mandatory

assessment.       All prison terms were to be served concurrently.             For

the CCE charge, Bass’s punishment included one 360-month term of

imprisonment to be followed by five years of supervised release and

a $50 assessment.

      After we affirmed Bass’s conviction and sentence on direct

appeal,2 Bass filed a pro se 28 U.S.C. § 2255 habeas corpus

petition to vacate, set aside, or correct his sentence.                    That

petition eventually became the subject of Bass I.                    There, we

concluded that the evidence was insufficient to support Bass’s CCE

conviction, and because his counsel’s failure to raise the issue on

direct appeal was prejudicial, we vacated his CCE conviction.                  We


      1
          310 F.3d at 323-25.
      2
          See United States v. Alix, 86 F.3d 429 (5th Cir. 1996).

                                       2
said, however, that the CCE conviction prejudiced Bass only insofar

as it increased his mandatory assessment by $50.            As Bass was

serving all of his sentences concurrently, we remarked that our

vacature of his CCE conviction would not reduce his total time of

incarceration.3

     Following remand, Bass filed a motion for an evidentiary

hearing and appointment of counsel.        He requested a new sentencing

hearing and recalculation of the applicable offense level because

his total sentence was based on the offense level for the CCE

conviction, his most serious charge.          The district court vacated

Bass’s CCE conviction and corresponding $50 assessment, but refused

to hold a new sentencing hearing.        To challenge this decision, Bass

lodged this pro se appeal.4

                            II.     ANALYSIS

     Bass contends that the district court erred in denying his

post-remand motion for a new sentencing hearing.5         He argues that

our decision in Bass I permitted, but did not require, the district

     3
         Bass I, 310 F.3d at 330.
     4
       On June 24, 2004, the Supreme Court rendered its decision
in Blakely v. Washington, 542 U.S. ---, 124 S. Ct. 2531 (June 24,
2004), which raised the specter that the federal sentencing
guidelines may be unconstitutional. Our circuit, however, has
held that Blakely does not invalidate the federal guidelines.
See United States v. Pineiro, No. 03-30437, --- F.3d ----, 2004
WL 1543170 (5th Cir. July 12, 2004). Thus, for now, we do not
consider whether Blakely might have an effect on the issues
presented in this appeal.
     5
       Bass has also raised other issues on appeal, but as they
are wholly without merit, we do not address them here.

                                     3
court to impose the same prison sentence.           The government responds

that our mandate in Bass I prohibited the district court from

resentencing       Bass.   Although     the   district      court    reasonably

interpreted our mandate, we conclude that a new sentencing hearing

is warranted because our earlier vacature of Bass’s CCE conviction

“unbundled” his sentencing package.6

A.   Standard of Review

     The interpretation of the scope of our remand order in Bass

I and whether the mandate rule foreclosed the district court’s

exercise of discretion on remand present questions of law that we

review de novo.7

B.   Bass I Unbundled Bass’s Sentencing Package

     In denying Bass’s request for a new sentencing hearing, the

district court dutifully followed our instruction “to reduce his

total assessment to $600 for the remaining 14 counts for which

Bass’s convictions stand.”8       Given our express statement in Bass I

that “Bass’s total time of incarceration will not be shortened as

a result of our decision today to vacate his CCE conviction,”9 the

district       court   understandably   concluded    that    it     was   without

authority to reconsider any other aspect of Bass’s punishment.

     6
         See infra note 15 and accompanying text.
     7
         See United States v. Phipps, 368 F.3d 505, 510 (5th Cir.
2004).
     8
         310 F.3d at 330.
     9
         Id.

                                        4
     Nevertheless,    Bass   is   correct   that,   in   calculating   the

applicable guideline range, the probation officer had grouped all

15 counts and applied the offense level for the most serious count,

which was the CCE charge.     Pursuant to U.S.S.G. § 2D1.5 (the CCE

guideline), four levels were added to the offense level governing

the underlying drug offenses under U.S.S.G. § 2D1.1, resulting in

a total offense level of 42.        This score, combined with Bass’s

criminal history category of I, resulted in a guideline sentencing

range of 360 months to life imprisonment.      In light of our vacature

of the CCE conviction, though, § 2D1.5 was no longer applicable.

Thus, Bass’s total offense level under § 2D1.1 would only have been

a 38 which, when combined with his criminal history category, would

have yielded a guideline sentencing range of 235 to 293 months’

imprisonment.10     We failed to recognize this in rendering our

decision in Bass I.

     The mandate rule requires a lower court to “implement both the

letter and the spirit of the appellate court’s mandate and ... not

disregard the explicit directives of that court.”11 We cannot fault

the district court for its post-remand ruling, but the mandate rule

is a corollary to the law of the case doctrine and is therefore not




     10
          See U.S.S.G., Chap. 5, Sentencing Table.
     11
        United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004)
(quoting United States v. Matthews, 312 F.3d 652, 657 (5th Cir.
2002)).

                                    5
“inviolate.”12    If our ruling from a prior appeal in the same case

is “clearly erroneous and would work a manifest injustice,” the

district court on remand may exceed our mandate.13

     The punishment imposed by the district court was part of an

integrated “sentencing package,”14 a consideration overlooked in

Bass I:

     When a defendant is convicted of more than one count of
     a multicount indictment, the district court is likely to
     fashion a sentencing package in which sentences on
     individual counts are interdependent. When, on appeal,
     one or more counts of a multicount conviction are
     reversed and one or more counts are affirmed, the result
     is an “unbundled” sentencing package. Because the
     sentences are interdependent, the reversal of convictions
     underlying some, but not all, of the sentences renders
     the sentencing package ineffective in carrying out the
     district court’s sentencing intent as to any one of the
     sentences on the affirmed convictions.15

We, therefore, “said too much” in our Bass I opinion about the net

effect of our vacature of Bass’s CCE conviction on his sentence.


     12
          See id. at 320.
     13
          Matthews, 312 F.3d at 657.
     14
       United States v. Campbell, 106 F.3d 64, 68 (5th Cir.
1997). See U.S.S.G. § 5G1.2 (directing the court to sentence
multiple counts of conviction as a single interdependent package,
and to use consecutive as well as concurrent sentencing to
construct a combined sentence equal to the total punishment).
     15
       United States v. Shue, 825 F.2d 1111, 1114 (7th Cir.
1987). Although our circuit has not expressly used the term
“unbundled,” it is a metaphor widely used among the circuit
courts. See, e.g., United States v. Smith, 115 F.3d 241, 245 n.4
(4th Cir. 1997); United States v. Evans, 314 F.3d 329, 332 (8th
Cir. 2002); United States v. Ruiz-Alvarez, 211 F.3d 1181, 1184
(9th Cir. 2000); United States v. Hicks, 146 F.3d 1198, 1202
(10th Cir. 1998); United States v. Watkins, 147 F.3d 1294, 1297
(11th Cir. 1998).

                                  6
      Our failure to acknowledge this principle was error, and

because our vacature of Bass’s CCE conviction could result in a

reduced total sentence for Bass, it would be unjust for Bass not to

be resentenced.     At resentencing, the district court may consider

de   novo any    sentencing-related       issues   that   arise   out   of   our

vacature of Bass’s CCE conviction.16          For example, the court may

consider whether a “role in the offense” adjustment is warranted

under U.S.S.G. § 3B1.1.17

                            III.   CONCLUSION

      As our decision in Bass I unbundled Bass’s original sentencing

package, we vacate Bass’s sentence and remand for a new sentencing

hearing and other proceedings consistent with this opinion.18

VACATED and REMANDED.




      16
           See Lee, 358 F.3d at 323.
      17
           See, e.g., Ruiz-Alvarez, 211 F.3d at 1183.
      18
       Whether appointment of counsel and an evidentiary hearing
are necessary in light of our ruling today is a question we leave
to the district court’s sound discretion.

                                      7
