                                                                          F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      January 11, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                       No. 06-8011
          v.                                             (D . of W yo.)
 R AY M ON D D EA N BR OWN ,                      (D.C. No. 00-CR-59-W FD)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges. **


      This case results from our disposition of United States v. Brown, 400 F.3d

1242 (10th Cir. 2005) (“Brown I”). In that case, we affirmed the conviction of

defendant-appellant Raymond D. Brown for violating several federal firearms

laws, but reversed his sentence based on the failure of the district court to resolve




      *
         This order and judgment is not binding precedent except under the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 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Brow n’s objections to his presentence report. At resentencing, the district court

significantly reduced Brown’s sentence, reducing it by 45 months.

      In this appeal, Brown claims several errors in the district court’s re-

sentencing. Brown contends that the district court erred in (1) failing to conduct

a de novo resentencing on remand, (2) refusing to grant Brown an adjustment for

his acceptance of responsibility, (3) adding criminal history points for state

charges, which involved the same conduct as the federal charges, and (4) failing

to give Brown credit for time served in federal custody in calculating his

sentence.

      W e AFFIRM Brown’s sentence and DISM ISS this case.

                                   I. Background

      In July of 2002, Raymond D. Brow n was convicted after a four-day jury

trial of (1) being a felon in possession of a firearm, (2) unlawfully possessing a

machine gun, and (3) carrying a machine gun in relation to a drug trafficking

crime, respectively in violation of 18 U.S.C. §§ 922, 924, and 18 U.S.C. § 2.

After considering the applicable sentencing guidelines and presentence report

(PSR ), the district court sentenced Brown to 75 months 1 imprisonment for the




      1
         The district court initially sentenced him to 115 months imprisonment for
these counts but granted Brown a 45-month credit for time already served in state
custody.

                                         -2-
first two counts and 360 months 2 imprisonment for the third count, to be served

consecutively.

      Brown subsequently appealed his conviction and sentence to this court. W e

affirmed Brown’s conviction, but reversed and remanded the case for

resentencing. Brown, 400 F.3d at 1255. W e held,

      M r. Brown’s final contention is the district court erred, under Fed. R.
      Crim. P. 32(i)(3), in accepting the presentence report’s assessment of his
      criminal record without ruling on his objections that some of his prior
      charges had in fact been dismissed. The sentencing transcript nowhere
      shows that the district court weighed these objections or sought further
      hearings regarding them. The governm ent agrees the district court
      should have resolved M r. Brown’s objections before sentencing him and
      that this case should be rem anded for resentencing. Since the disputed
      charges could result in a reduction of M r. Brow n’s criminal history
      category and thus his sentence, we agree that remand is appropriate.

      For the reasons stated above, we AFFIRM M r. Brown’s conviction but
      REVERSE and REM AND the case for sentencing.

Id.

      On remand, Brown filed numerous motions both relating to sentencing and

to his conviction in district court. Brown, among other things, sought to vacate

his conviction for lack of competency and for violations of Kastigar v. United

States, 406 U.S. 441 (1972), the double jeopardy clause, the Fifth Amendment

right against self-incrimination, and the Sixth Amendment right to counsel. The

district court addressed Brown’s competency claims and ultimately rejected them.



      2
        This sentence is statutorily mandated under 18 U.S.C. § 924(c)(1)(B)(ii).
As such, the G uidelines’ calculations only related to the first two counts.

                                         -3-
In dismissing Brow n’s other motions challenging his conviction, the district court

wrote that non-sentencing motions are not properly raised at a re-sentencing

hearing, which was the purpose of the remand.

      In the same order, the district court held that Brown’s request for a de novo

sentencing, including a new PSR, was “untimely” considering this court’s “very

specific directions to reconsider M r. Brow n’s objections to his criminal history

before imposing a sentence.” Aplt. A pp. vol. I, at 109.

      At Brown’s re-sentencing hearing the next day, the district court addressed

Brow n’s objections to the presentence report. First, Brow n sought a downward

adjustment for his “acceptance of responsibility,” U SSG § 3E1.1, based on his

initial assistance to state investigators. The district court declined the adjustment

stating that Brown “never accepted responsibility for the crime . . ., has

vigorously contested his innocence from its [sic] very inception of these charges

and does to the present hour.” ROA, vol. XX, at 58.

      Next, the district court considered the recommended “obstruction of

justice” enhancement, USSG § 3C1.1. Although not objected to at the original

sentencing proceedings, Brown challenged the enhancement on remand. After

hearing argument and witness testimony, the district court agreed with Brown and

declined to apply the “obstruction of justice” enhancement.

      The district court then ruled on Brown’s various objections to his criminal

history score, which the PSR determined to be 10, placing him in criminal history

                                          -4-
category V. The district court overruled most objections, but sustained Brow n’s

objection to the addition of one criminal history point for an Arkansas controlled

substance conviction because it was not clear whether he had counsel or

knowingly waived counsel.

      Finally, the district court addressed Brow n’s objection to the PSR’s

addition of three criminal history points for his W yoming state court conviction

for operating a clandestine methamphetamine laboratory. Brown claimed that the

state conviction could not be used to generate criminal history points because it

involved conduct that was also the basis for the instant federal conviction. The

district court heard testimony from a probation officer stating that the state

convictions were connected temporally to the instant offense, but that they were

not “relevant conduct” under the Guidelines. ROA, vol. XX, at 115–117. The

district court agreed with this assessment and overruled the objection.

      Based on the adjustments made to Brown’s Guidelines calculation on

remand, his total offense level was reduced from 24 to 22, and his criminal

history category was reduced from V to IV. The district court then sentenced

Brown to 30 months 3 imprisonment for the first two counts, but maintained the

statutorily mandated 360-month sentence for the third count, to be served

consecutively.



      3
         The district court sentenced Brown to 75 months imprisonment, but
credited him with 45 months time served in state prison.

                                          -5-
      Brown now appeals this sentence.

                                   II. Analysis

      In this appeal, Brown contends that the district court misinterpreted the

scope of this Court’s remand in failing to grant him a de novo resentencing and

erred in calculating the applicable sentencing guidelines. In considering a district

court’s sentencing determination, we review the district court’s factual findings

for clear error and its legal conclusions de novo. United States v. Kristl, 437 F.3d

1050, 1054 (10th Cir. 2006).

A.    Scope of Remand

      Brown argues that he was entitled to a de novo sentencing based on our

remand of his original sentence. W hile we agree the district court erred in failing

to grant Brown a de novo sentencing, we hold that such error was harmless

considering the district court’s consideration of all of Brown’s sentencing-related

motions.

      It is well-settled that resentencing on remand is typically de novo. United

States v. Keifer, 198 F.3d 798, 801 (10th Cir. 1999); United States v. Webb, 98

F.3d 585, 587 (10th Cir. 1996). Thus, when we vacate and remand a defendant’s

sentencing, lower courts must allow the defendant any procedural rights afforded

to him at sentencing in the first instance. United States v. Smith, 930 F.2d 1450,

1456 (10th Cir. 1991) (referencing Fed. R. Crim. P. 32(a)(1)).




                                         -6-
      Nevertheless, we may limit the district court’s discretion on remand

pursuant to the mandate rule. Keifer, 198 F.3d at 801. “The mandate rule is a

discretion-guiding rule that generally requires trial court conformity with the

articulated appellate remand.” United States v. Hicks, 146 F.3d 1198, 1200 (10th

Cir. 1998) (internal quotes omitted). W e have held that district courts should

depart from appellate court mandates only in cases of “exceptional

circumstances,” such as when a blatant error would result in “serious injustice.”

Webb, 98 F.3d at 587. A closely related doctrine is the “law of the case”

doctrine, where “findings made at one point during litigation become the law of

the case for subsequent stages of that same litigation.” Id.

      The district court in this case clearly interpreted Brown I as limiting its

power to conduct a de novo review on remand through the mandate rule. In

addressing Brown’s sundry motions, the district court stated, “[T]he court [of

appeals] has very succinctly told me what they expect me to do, and I am going to

obey the court, nothing more, nothing less.” ROA, vol. XX at 11. The district

court likely refers to our conclusion that the district court “should have resolved

M r. Brown’s objections [to the presentence report’s assessment of his criminal

record] before sentencing him.” Brown, 400 F.3d at 1256.

      W hile the district court’s interpretation is reasonable, we disagree that our

order in Brown I provided such a succinct and concrete instruction. A review of

our case law shows that we require quite a high level of specificity to limit a

                                          -7-
remand on resentencing. Compare Webb, 98 F.3d at 587 (panel directed district

court to resentence within the 27- to 33-month range); United States v. Davis, 912

F.2d 1210, 1215 (10th Cir. 1990) (“W e therefore will retain appellate jurisdiction

and ask the district court to explain its reasons for the extent of departure above

the guideline range.”).

      The mandate in Brown I simply lacks this type of specific direction. In

Brown I, we simply stated, “Since the disputed charges could result in a reduction

of M r. Brown’s criminal history category and thus his sentence, we agree that

remand is appropriate.” Brown, 400 F.3d at 1255. A plain reading of our holding

does not specifically limit the remand. Brown I’s conclusion supports this

reading, where we stated, “For the reasons stated above, we A FFIRM M r.

Brown’s conviction but REVERSE and REM AND the case for sentencing.” Id.

Here, we provide no explicit condition or qualifier to the remand order. Such an

order directs the district court to conduct sentencing anew. See Smith, 930 F.2d at

1456 (finding no specific mandate under similar language). Accordingly, to the

extent the district court believed that it was precluded from conducting a de novo

resentencing, we hold this view was incorrect.

      Nonetheless, we find that the district court’s error was harmless. Federal

Rule of Criminal Procedure 52(a) states that “any error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded.” An error

with respect to sentencing does not affect substantial rights when it did not affect

                                          -8-
the sentence imposed by the district court. United States v. Ollson, 413 F.3d

1119, 1120 (10th Cir. 2005). In this case, we agree with the government that

Brown’s brief does not point to a “single, specific sentencing issue that the

district court refused to entertain on the basis of its allegedly restrictive view of

what issues were properly within the scope of this court’s remand order.” Aple.

Br. at 21.

      Despite its pronouncement of a limited remand, the district court not only

considered the objections that prompted the remand, but it also considered

sentencing objections made for the first time on remand. For example, it

permitted Brown to call new witnesses to defeat the PSR’s obstruction of justice

enhancement, an issue not objected to at Brown’s initial sentencing. The district

court declined to apply the enhancement over the government’s objection based

on the new testimony.

      On our review of the record, we find that the only sentencing issues that the

district court failed to reach on the merits were (1) Brown’s motion from a new

PSR, (2) Brown’s request for a private investigator to verify his criminal history,

and (3) Brown’s request for the file on which the government relied in compiling

the PSR . 4 Brown, unfortunately, provides no information on how these motions


      4
         In Brown’s brief, he contends that he raised the issue of his “competency
to be sentenced.” Aplt. Br. at 9. W e do not find this assertion supported in the
record. Brown’s brief directs us to pages 3–14 of the district court order. Y et, a
                                                                       (continued...)

                                           -9-
would be warranted or how they would affect his sentencing on remand. In fact,

they are not even mentioned in his brief. Aplt. Br. at 9 (“M r. Brown need not

hash out each of the grounds justifying relief for each of his motions, instead, the

improper limitation warrants a remand with a de novo review.”).

      Brown next argues that the district court should have entertained all of his

motions, including the motions attacking his conviction, at sentencing. W e

disagree. Because we upheld Brown’s firearms convictions in Brown I, we hold

that the “law of the case” doctrine applies to these motions unrelated to

sentencing. “Ordinarily, we will not review in a second direct appeal an issue

that underlies a previously affirmed conviction.” United States v. Gama-Bastidas,

222 F.3d 779, 784 (10th Cir. 2000). In the absence of non-waivable issues

attacking the underlying conviction, remand on the sentencing question will not

reopen for review the underlying convictions. Id. M ost of the non-sentencing

issues that Brown raised on remand, such as his double jeopardy and Fifth

Amendment claims, were previously raised and adjudicated by this court in

Brown I. The few issues that Brown raised for the first time on remand do not




      4
       (...continued)
search of that order reveals that Brown only raised a motion to vacate his
conviction for lack of competency. W e find no indication he raised a
competency to be sentenced claim.

                                         -10-
constitute a non-waivable, jurisdictional issue requiring us to depart from the

general rule. See Gama-Bastidas, 222 F.3d at 785. 5

      Since Brown has not demonstrated how the district court’s legal error

affected his sentencing, we find a remand to conduct another sentencing to be

unnecessary.

B.    Acceptance of Responsibility



      5
         In the Reply Brief, Brown’s counsel intimates that Brown did in fact
raise a jurisdictional issue in his “allocution.” Aplt. Reply Br. at 2. Brown
provides no citation to the record, which is troubling considering the record
contains 26 volumes. Nevertheless, we surmise that he is referring to Brow n’s
colloquy with the district court during his original sentencing.

     I was charged for three firearms [sic]; yet I felt that I was on trial for
     methamphetamine manufacturing. I know that’s an essential element for
     the 924(c), but it went way beyond that. [T]he jury was given an
     instruction that says if they don’t . . . prove me guilty beyond all
     reasonable doubt of manufacturing methamphetamine, then you can’t
     find m e guilty of Count Three. M y indictment didn’t tell me that I had
     to prepare for trial for manufacturing methamphetamine.

ROA, vol. XV at 15.

       W e assume that Brown’s counsel is attempting to make a claim for
insufficiency of indictment, a non-w aivable claim. See Fed. R. Crim. P. 12(b)(2).
But we do not find this a cognizable claim. Brown’s dialogue later shows that he
is attempting to determine if the government could prosecute him on a drug
charge, not challenge his indictment. “Since the jury has found me guilty of this
drug-trafficking crime, a federal drug-trafficking crime at that, can the
government now or later indict me for this federal felony offense in Title 21
U.S.C., Section 841(a), manufacturing methamphetamine?” Id. W e have also
review ed Brow n’s 50 plus page filing submitted during his allocution and we
again find no cognizable, non-waivable claims. Accordingly, we dismiss this
argument.

                                        -11-
      Brown next contends that he was entitled to an “acceptance of

responsibility” downward adjustment pursuant to Sentencing Guidelines § 3E1.1.

Brown claims that, after his initial arrest by state authorities, he immediately

assisted investigators by sharing information about his methamphetamine

laboratory and pleaded guilty to state charges. Brown argues that he later went to

trial on his federal charges, because he wanted to vindicate certain constitutional

rights, such as violations of his state immunity agreement, Fifth Amendment

rights, and rights under the Double Jeopardy Clause. W e agree with the district

court that such a downward adjustment was not warranted.

      Under the Guidelines, the downward adjustment is appropriate where the

defendant “clearly demonstrates acceptance of responsibility for his offense.”

USSG § 3E1.1(a). Additional reductions are possible if the defendant “timely

provid[es] complete information to the government concerning his own

involvement in the offense” or “timely notif[ies] authorities of his intention to

enter a plea of guilty.” Id. at 3E1.1(b). Section 3E1.1’s commentary directs,

     This adjustment is not intended to apply to a defendant who puts the
     government to its burden of proof at trial by denying the essentials
     factual elements of guilt, is convicted, and only then admits guilt and
     expresses remorse. Conviction by trial, however, does not automatically
     preclude a defendant from consideration for such a reduction. In rare
     situations a defendant may clearly demonstrate an acceptance of
     responsibility for his criminal conduct even though he exercises his
     constitutional right to trial. This may occur, for example, where a
     defendant goes to trial to assert and preserve issues that do not relate to
     factual guilt . . . .



                                         -12-
Id. at cmt. n.2.

       W e see no error in the district court’s finding that Brown has “not admitted

his guilt, and he certainly has not expressed remorse.” As the district court noted,

Brown “spent most of his time castigating the fundamental fairness of the

proceedings.” ROA, vol. XX at 57. In the 50 plus page filing attached to his

allocution, he accuses the government at length of engaging in a “vindictive”

conspiracy to convict him and of suborning perjury. ROA, vol. II, doc. 235. He

also contests the factual evidence to prove his 18 U.S.C. § 924 conviction. Id.

Belying his claim that he willingly submitted himself to justice under state law

and only challenged his federal charges to protect his constitutional rights, he

describes his desire to “have the opprotunity [sic] to attack [his] illegal state

conviction.” Id. While he did provide some assistance to state investigators, w e

do not find that his assistance rose to the level of acceptance of responsibility in

light of his other conduct.

       In sum, Brown’s actions do not illustrate the type of remorse justifying the

“rare situation” of providing a downward adjustment when a defendant puts the

government to its burden of proof and so we decline to do so. United States v.

Salazar-Samaniega, 361 F.3d 1271, 1280–82 (10th Cir. 2004).

C.     State Criminal Convictions

       Brown’s next issue concerns the alleged improper assessment of three

criminal history points for his state court controlled substance conviction which

                                          -13-
arose from the same nucleus of facts as the instant federal firearms convictions.

Brown claims that the conduct underlying his state drug convictions was “part” of

his federal offense and so it cannot count as a “prior sentence” under Sentencing

Guidelines § 4A1.2.

      Section 4A1.1(a) allows for the addition of three criminal points for each

prior sentence exceeding one year and one month; this provision no doubt applies

to Brown’s state conviction for operating a methamphetamine laboratory for

which he was sentenced for three to five years if it was a “prior sentence.”

Section 4A1.2 defines “prior sentence” as “a sentence imposed prior to sentencing

on the instant offense, other than a sentence for conduct that is part of the instant

offense.” USSG § 4A1.2 at cmt. n.1 (“Conduct that is part of the instant offense

means conduct that is relevant conduct to the instant offense under the provisions

of §1B1.3.”).

        W hen a district court applies a prior sentence for criminal history

purposes, we are directed to “review the court’s underlying finding that the prior

sentence was not part of the instant offense, i.e., that it was not relevant conduct.”

United States v. Torres, 182 F.3d 1156, 1160 (10th Cir. 1999). The district court

found that the state drug conviction was not “relevant” conduct to firearms

possession. In reviewing that finding, we “generally examine several factors,

including the similarity, temporal proximity, and regularity of the instant offense

and the prior sentence.” Id. Considering these factors and applicable precedent,

                                         -14-
we are convinced that the district court did not err in applying the three criminal

points for Brown’s state conviction.

       In this case, state police arrested Brown and a female co-defendant after

surrounding her car at a grocery store parking lot. Brown, 400 F.3d at 1245. The

machine gun linked to Brown was found in the car. Id. at 1246. The co-

defendant then informed the police about the methamphetamine lab. Id. A week

after pleading guilty to the state drug charge, a federal government indicted

Brown on the instant charges. Id.

       W e find the first factor of “similarity” strongly cuts against Brown because

the “substance and nature” of the offenses are distinct. Torres, 182 F.3d at 1160.

First, drug manufacturing and weapons possession represent different “societal

harms.” ROA, vol. XX at 116; see United States v. Nanthanseng, 221 F.3d 1082,

1084 (9th C ir. 2000) (“The societal interest threatened by violations of drug law s

. . . is the interest in drug abuse prevention. . . . The societal interests most

directly threatened by the possession . . . of . . . firearms are . . . preventing the

loss of personal safety resulting from . . . violent physical assault.” (citations

omitted)). Offenses involving such different societal interests are by definition

not “groupable” under Sentencing Guidelines § 3D1.2(d), see § 3D1.2 at cmt. n.2,

and thus do not constitute “relevant conduct” under § 1B1.3.

       Additionally, the offenses were “severable instances of unlawful conduct.”

United States v. Banashefski, 928 F.2d 349, 352 (10th Cir. 1991) (considering

                                           -15-
severability as a factor in this inquiry). Brow n violated the federal firearm

statutes as soon as he possessed a machine gun. His drug manufacturing had no

bearing on the violation of these federal charges and vice versa. For example, if

Brown was arrested with the machine gun, but did not engage in drug

manufacturing, he would still be guilty of the firearms charges. In short,

evidence of one crime was unnecessary to prove the other crime.

      The government concedes that the second factor of temporal proximity

favors Brown — he possessed the machine gun while manufacturing drugs.

Nevertheless, considering the distinct “substance and nature” of the crimes and

different societal interests involved, we agree that the addition of the criminal

history points was warranted despite the offenses’ close temporal proximity. See

United States v. Ladum , 141 F.3d 1328, 1347–48 (9th Cir. 1998) (allowing

criminal history points of conduct that occurred during the course of the instant

offense).

      Of course, our resolution of this claim would be quite different if the

sentencing calculation pertained to Brown’s conviction for carrying a machine

gun in relation to drug trafficking. If this were the case, the state drug charge

would clearly relate to the federal firearms charge. Yet, since that charge




                                         -16-
provides for a mandatory minimum sentence, the Guidelines are inapplicable and

the state conviction has no affect on such a sentence. 6

D.    Credit for Time Served in Federal Custody

      Brown’s final claim is that the district court erred by not aw arding him

sentencing credit under 18 U.S.C. § 3585(b) for the time already served in federal

custody prior to his resentencing. W e dismiss this claim. As w e have previously

held, a sentencing court is without jurisdiction to award credit under § 3585(b)

for time served in prior custody at sentencing. United States v. Jenkins, 38 F.3d

1143, 1144 (10th Cir. 1994). Rather, the authority resides with the Attorney

General, as exercised by the federal Bureau of Prisons. Id.

                                  III. Conclusion

      For the foregoing reasons, we AFFIRM the district court’s sentence and

DISM ISS this appeal.

                                        Entered for the Court

                                        Timothy M . Tymkovich
                                        Circuit Judge




      6
          Brown also contends that his state conviction involved a w eapons offense
and w as thus relevant to his federal firearms charges. Reply Br. at 4. As Brow n
admits, the weapons offense was dismissed pursuant to a plea agreement. Since
no state conviction exists on a weapons charge, we see no reason to overturn the
district court’s holding.

                                         -17-
