
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No.  93-1237                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   GERALD CONNELL,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                      Aldrich and Coffin, Senior Circuit Judges.                                          _____________________                              _________________________               Arthur W. Tifford for appellant.               _________________               Craig N. Moore, Assistant  United States Attorney, with whom               ______________          Edwin  J. Gale, United States  Attorney, and Stephanie S. Browne,          ______________                               ___________________          Assistant United States  Attorney, were on brief,  for the United          States.                              _________________________                                   October 6, 1993                              _________________________                    SELYA,  Circuit Judge.   This appeal,  in which  we are                    SELYA,  Circuit Judge.                            _____________          asked  to review  the  district court's  denial  of a  motion  to          reconsider a sentence  previously imposed,  presents yet  another          permutation of an existing  application of the "law of  the case"          doctrine.   For the reasons limned herein, we affirm the district          court's order.          I.  BACKGROUND          I.  BACKGROUND                    Defendant-appellant Gerald Connell pleaded guilty to an          information that  charged him with structuring  cash transactions          to  avoid certain reporting requirements.  See 31 U.S.C.    5313,                                                     ___          5324 (1988).   At a sentencing hearing held on June 26, 1991, the          district  court imposed  a prison  sentence (thirty  months) that          fell  within  the  guideline  sentencing  range  (GSR),  fixed  a          supervised release  period, fined  Connell $15,000, and  directed          him to pay the  costs of his forthcoming confinement  at the rate          of $1,415.56 per month.                    Connell  appealed, complaining  that his  offense level          had been improperly  constituted, thereby inflating the  GSR.  We          affirmed the sentence, see United States v. Connell, 960 F.2d 191                                 ___ _____________    _______          (1st Cir. 1992), but with the proviso that the district court, on          remand, nevertheless might consider whether an intervening change          in  the   sentencing  guidelines  warranted  adjustment   of  the          sentence.  See id. at 199.1                     ___ ___                                        ____________________               1The  revision  to the  guidelines  involved  the number  of          levels that should be  added to a defendant's base  offense level          in a case where, as here, criminally derived funds were knowingly          laundered.   The extent, timing,  and effect of  the revision are          explained in our earlier  opinion, see Connell, 960 F.2d  at 197,                                             ___ _______                                          2                    After  the   case  returned  to  the   district  court,          defendant sought an  adjustment of sentence based  on the changed          guideline and also moved for reconsideration of the $15,000 fine.          The court heard oral argument on May 7, 1992.  It issued an order          on  that  date  recomputing the  GSR  in  line  with the  revised          guideline  and  reducing Connell's  prison  term to  twenty-seven          months,  but leaving  the fine  intact.   The cost-of-confinement          portion  of  the  sentence remained  unchallenged  and  unchanged          (except  that the court's estimate of overall cost was lowered to          reflect  the three-month decrease in the term of immurement).  An          amended judgment was entered  on or about May 28, 1992.   Connell          appealed from the order  and judgment, but let the  appeal slide.          The amended judgment thus became final.                    Some  seven months  later, Connell  shifted gears.   He          retained   new   counsel  and   filed   a   further  motion   for          reconsideration of sentence  in which  he raised,  for the  first          time,  a complaint  about  the cost-of-confinement  order.2   The          district court denied the motion.3  This appeal followed.                                        ____________________          and we will not rehearse those details here.               2Connell filed this motion in the district court on November          24, 1992, and filed an amended  motion on December 23, 1992.  For          ease in reference, we  treat these pleadings as a  single motion,          sometimes styled the "December 1992 motion for reconsideration."               3Although  the  government  has  not raised  the  point,  we          question  whether the  district court, so  long after  the appeal          period expired, had  jurisdiction to  entertain Connell's  motion          for reconsideration.  See United States v. Miller, 869 F.2d 1418,                                ___ _____________    ______          1421  (10th  Cir. 1989)  (ruling that  the district  court lacked          jurisdiction to  entertain a motion  to reconsider in  a criminal          case where defendant filed the motion twenty-one months after the          date on which the appeal period  [10 days] began to run);  United                                                                     ______                                          3          II.  DISCUSSION          II.  DISCUSSION                    Connell appeals the denial  of his December 1992 motion          for reconsideration,  sounding two variations on  a single theme:          that U.S.S.G.   5E1.2(i), which provides  for cost-of-confinement          orders  in  certain  criminal  cases,4  is  unconstitutional  or,          alternatively,  is  in  excess  of  the  Sentencing  Commission's          statutory  powers.     Although  the  challenge   itself  is  not          frivolous, compare, e.g., United  States v. Spiropoulos, 976 F.2d                     _______  ____  ______________    ___________          155, 165-69 (3d  Cir. 1992)  (striking down the  imposition of  a          cost-of-confinement order on similar grounds)  with, e.g., United                                                         ____  ____  ______          States v. Turner, ___ F.2d ___, ___ (7th Cir. 1993) [No. 93-1148,          ______    ______                                        ____________________          States v.  Cook, 670  F.2d 46,  48 (5th Cir.)  (holding that  the          ______     ____          district  court lacked  jurisdiction  to entertain  a motion  for          rehearing  filed  fifty-seven  days  after  the  entry  of  final          judgment  in a criminal case), cert. denied, 456 U.S. 982 (1982).                                         _____ ______          We  need not probe the point, however,  for it is settled that an          appellate  court may  forego the  resolution of  a jurisdictional          question if, as  is true  here, the appeal  is uncomplicated  and          easily  resolved in  favor  of the  party  to whose  benefit  the          jurisdictional question  would redound.   See Norton  v. Mathews,                                                    ___ ______     _______          427 U.S.  524, 532 (1976);  Secretary of the Navy  v. Avrech, 418                                      _____________________     ______          U.S. 676,  677-78  (1974)  (per curiam);  cf.  United  States  v.                                                    ___  ______________          Leavitt, 925  F.2d 516, 517 (1st Cir. 1991) (stating that a court          _______          may  overlook waiver of an issue by  a criminal defendant so long          as resolution on the merits will favor the same party  as would a          disposition premised on waiver).               4The guideline provides in pertinent part:                     Notwithstanding the  provisions of subsection                    (c)  [the fine  table] of  this section,  but                    subject to  the provisions of  subsection (f)                    [discussing the defendant's ability to  pay]                     . . . , the court shall impose an  additional                    fine amount that  is at  least sufficient  to                    pay  the  costs  to  the  government  of  any                    imprisonment,   probation,   or    supervised                    release ordered.          U.S.S.G.   5E1.2(i).                                          4          1993  U.S. App.  LEXIS  17472  at  *3-*7] (upholding  a  cost-of-          confinement order against a  similar challenge) and United States                                                          ___ _____________          v.  Hagmann,  950 F.2d  175, 187  (5th  Cir. 1991)  (same), cert.              _______                                                 _____          denied,  113 S.  Ct.  108  (1992);  see  also  United  States  v.          ______                              ___  ____  ______________          Carrozza,  ___ F.2d ___, ___  (1st Cir. 1993)  [No. 92-1798, slip          ________          op.  at  34-37]  (leaving  question  open),  Connell  has  failed          properly to preserve it in the circumstances of this case.                    This  case is  analogous in  factual profile  and legal          stance to United  States v. Bell,  988 F.2d 247  (1st Cir.  1993)                    ______________    ____          (Bell II).  Bell  originally challenged his sentence as  a career           _______          offender under  the  sentencing guidelines,  contending that  the          offense of conviction   being a felon in possession of a  firearm            was not a crime of violence.  See id. at  249; United States v.                                          ___ ___          _____________          Bell, 966 F.2d 703, 704 (1st Cir. 1992) (Bell I).  Bell contended          ____                                     ______          that he should have been sentenced instead under the Armed Career          Criminal Act (ACCA), 18  U.S.C.   924(e)(1)(1988).  See  Bell II,                                                              ___  _______          988 F.2d at 249;  Bell I, 966 F.2d  at 704.  We  sustained Bell's                            ______          appeal, 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."  Bell  I, 966 F.2d at 703.                                                  _______          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                                          5          and,  through that medium, his  ACCA status.   The district court          ruled  that the objection was  untimely and sentenced  Bell as an          armed career  criminal.   See Bell  II, 988 F.2d  at 249-50.   We                                    ___ ________          affirmed the district court's decision to deny reconsideration of          the second, delinquent, challenge.  See id. at 252.                                              ___ ___                    The  lesson  of the  Bell cases  is  as clear  as their                                         ____          namesake:                    [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.          Id.  at  250.   This  lesson  embodies  a rather  straightforward          ___          application of  the law of the case doctrine     a  doctrine that          is rooted  in an array of prudential  considerations:  "stability          in the decisionmaking process, predictability of results,  proper          working relationships  between 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).   That                               _____  ______          is to  say, law-of-the-case rules  afford courts the  security of          consistency  within a single case while at the same time avoiding          the  wastefulness, delay, and  overall wheel-spinning that attend          piecemeal  consideration   of  matters  which   might  have  been          previously adjudicated.  See 18 Charles A. Wright et al., Federal                                   ___                              _______          Practice  &  Procedure    4478  at  603  (Supp.  1993).   In  the          ______________________          interests of  both consistency  and judicial  economy, therefore,          litigants  should not ordinarily be  allowed to take serial bites                                          6          at the appellate  apple.  See, e.g., United  States v. Rosen, 929                                    ___  ____  ______________    _____          F.2d 839, 842 n.5 (1st Cir.), cert. denied, 112 S. Ct. 77 (1991);                                        _____ ______          United States v. DeJesus,  752 F.2d 640, 642-43 (1st  Cir. 1985);          _____________    _______          White  v. Murtha,  377 F.2d  428, 431 (5th  Cir. 1967);  see also          _____     ______                                         ___ ____          Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d          _____________________________    ______________________          243, 250 (D.C. Cir. 1987) (stating that a legal  decision made at          one  stage  of  litigation  becomes  the  law  of  the  case  for          subsequent   stages  of   litigation  if   the  opportunity   for          challenging the  decision in an  earlier appeal existed  and went          unexploited).                    We think it follows that when a trial court, on remand,          seeks  to dispose  of  a case  in  accordance with  an  appellate          court's  mandate,  it "must  implement  both the  letter  and the          spirit of the 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).   Because  the  mandate  serves as  a          limitation  on  the power  of the  trial  court, the  issues that          remain  open on  remand frequently will  be circumscribed  by the          earlier appeal  and by the  appellate court's disposition  of the          issues therein.  See Rivera-Martinez, 931 F.2d at  150-51; United                           ___ _______________                       ______          States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992).          ______    _________                    The  case before  us is  governed by  these rules.   In          1991,  the  district  court   invoked  U.S.S.G.     5E1.2(i)  and          sentenced  Connell,  inter  alia,   to  pay  the  costs   of  his                               _____  ____          confinement.   Connell  appealed his  sentence, but  eschewed any                                          7          challenge to the cost-of-confinement order.  Having foregone that          opportunity,  Connell  could  not   thereafter  insist  that  the          district court exceed the limited scope of our remand in order to          revisit a settled issue.                    In this case, moreover, Connell defaulted not once, but          twice.   As we have indicated,  he did not challenge the cost-of-          confinement order on his  direct appeal.  He then  compounded his          difficulties  by  omitting any  reference  to  the  order in  the          proceedings   that  immediately   followed  our   remand.     His          afterthought request for  reconsideration, occurring, as it  did,          some  seven months  after the  district court  had fulfilled  its          mission on remand   and well beyond the expiration of the  appeal          period in respect to the revised sentence   came too  late.  See,                                                                       ___          e.g.,  United States v. Ramirez,  954 F.2d 1035,  1038 (5th Cir.)          ____   _____________    _______          (holding that,  in order  to be  timely,  a criminal  defendant's          motion for reconsideration must be filed  within the ten-day time          period  allotted  for appeal),    cert.  denied,  112 S.Ct.  3010                                            ____   ______          (1992); see also  United States  v. Miller, 869  F.2d 1418,  1421                  ___ ____  _____________     ______          (10th Cir.  1989); United States  v. Cook,  670 F.2d 46,  48 (5th                             _____________     ____          Cir.), cert. denied, 456 U.S. 982 (1982).  After all, if Connell,                 ____  ______          having  initially conceded  the cost-of-confinement  issue, could          not  have raised it when the district court, on remand, undertook          its  reconsideration  of  the  incarcera-  tive  portion  of  his          sentence, see  Bell II, 988 F.2d  at 250, then he  clearly had no                    ___  _______          right  to raise the issue  after the revised  sentence had become          final.   Cf., e.g., Witty v. Dukakis, ___ F.2d ___, ___ (1st Cir.                   ___  ____  _____    _______                                          8          1993) [No. 93-1238, slip op. at 7] ("A party confronted  by a set          period for taking an  action cannot allow the  time to lapse  and          then  resurrect  his  rights  merely  by  asking  the   court  to          reconsider or to confirm what the court has already done.").                    To  be sure, neither the  law of the  case doctrine nor          its kissing  cousin, the so-called "mandate rule," is designed to          function as a straitjacket.  Rather, these are discretion-guiding          principles,  generally thought to be subject to exceptions in the          interests of justice.5  See Bell II, 988 F.2d at  251 (collecting                                  ___ _______          cases).   But, the exceptions are narrowly  configured and seldom          invoked, and this  case has none of  the requisite earmarks:   no          new  evidence has  been unearthed,  no controlling  precedent has          emerged suddenly,  the motion  for  reconsideration contained  no          suggestion that  Connell  lacks the  means  to pay  the  cost-of-          commitment impost,  the delay in  raising the point  is unexcused          and seems  excessive, and,  most importantly, we  are unpersuaded          that the  "decision  was  clearly  erroneous  and  would  work  a          manifest injustice."  Rivera- Martinez,  931 F.2d at 151 (quoting                                ________________          White,  377 F.2d at 432).  Given these circumstances, and mindful          _____          of the  substantial latitude  retained by  the district  court in          deciding  whether to rethink matters previously  set to rest, see                                                                        ___          United States v. Roberts, 978 F.2d 17,  20-21 (1st Cir. 1992), we          _____________    _______          cannot  say that the court below abused its discretion in denying                                        ____________________               5Although it is not altogether clear that a trial court on a          limited  remand may exceed, for whatever reason, the scope of the          appellate court's mandate, see  Bell II, 988 F.2d at  251 n.2, we                                     ___  _______          assume arguendo, favorably to Connell, that such power exists.                 ________                                          9          Connell's belated  motion for  reconsideration of this  aspect of          his sentence.          III.  CONCLUSION          III.  CONCLUSION                    We need  go  no further.6    Courts can  only  function          under the aegis of rules   and parties who ignore the rules do so          at  their peril.  See, e.g., Puleio  v. Vose, 830 F.2d 1197, 1203                            ___  ____  ______     ____          (1st Cir. 1987) ("The law ministers to  the vigilant not to those          who sleep upon perceptible rights."), cert. denied, 485  U.S. 990                                                _____ ______          (1988).  So it  is here:  appellant,  having failed to  challenge          the cost-of-confinement order in a timeous manner,  must bear the          predictable  consequences of his neglect.   On the  facts of this          case, we discern no  injustice in holding appellant to  the usual          raise-or-waive standard.          Affirmed.          Affirmed.          _________                                        ____________________               6Citing  a  November 1992  amendment  to  U.S.S.G.    3E1.1,          Connell's December 1992 motion for reconsideration also  asserted          an  entitlement to a  more extravagant  credit for  acceptance of          responsibility.  The  district court hewed  to the original  two-          level decrease  for acceptance  of responsibility because  it did          not   believe  that   the   1992  amendment   could  be   applied          retroactively.  This court  later reached the same  conclusion in          an unrelated  case.  See United States  v. Desouza, 995 F.2d 323,                               ___ _____________     _______          324  (1st  Cir.  1993)  (per  curiam).    In  light  of  Desouza,                                                                   _______          appellant's counsel abandoned this issue at oral argument.                                          10
