                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                December 21, 2016
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 16-3023
          v.                                  (D.C. No. 6:03-CR-10148-JTM-1)
 MICHAEL HENDRIX,                                          D. Kansas

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, MURPHY, and HOLMES, Circuit Judges. **



I.    Introduction

      Defendant-Appellant, Michael Hendrix, challenges the district court’s

authority to extend his original term of supervised release by one year. Although

this court has already ruled against Hendrix on that very issue, United States v.

Hendrix (Hendrix I), 630 F. App’x 816, 819-20 (10th Cir. 2015), he asserts our


      *
        This order and judgment is not binding precedent except under the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.
      **
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,
submitted without oral argument.
prior decision is “clearly erroneous” and, thus, the law of the case doctrine does

not preclude reconsideration of the issue. See McIlravy v. Kerr-McGee Coal

Corp., 204 F.3d 1031, 1035 (10th Cir. 2000) (holding law of the case principles

do not prevent this court from revisiting a prior ruling if that ruling “was clearly

erroneous and would work a manifest injustice”). Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, we affirm the district court’s judgment.

II.   Background

      In 2004, Hendrix was convicted of receiving child pornography, in

violation of 18 U.S.C. § 2252(a)(2). Hendrix I, 630 F. App’x at 817. He was

sentenced to ninety-six months’ imprisonment and three years’ supervised

release. Id. Hendrix began his term of supervision on June 21, 2012. Id.

Approximately two years later a warrant was issued for his arrest based on three

charged violations of his supervised release. At a revocation hearing held on

October 6, 2014, Hendrix admitted to the three charged violations and was

sentenced to two years’ imprisonment. Id. Approximately three hours after the

hearing concluded, the district court held a second hearing, stating it “neglected

to cover the matter of supervision” at the earlier hearing. Id. The court then

added a one-year term of supervision to the two-year term of imprisonment it had

imposed earlier in the day. Id.

      Hendrix appealed the imposition of the one-year term of supervision. This

court ruled that Rule 35 of the Federal Rules of Criminal Procedure did not give

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the district court authority to subsequently add a year of supervised release to

Hendrix’s two-year term of imprisonment for the supervised release violation.

Id. at 817-19 (holding the sentencing “hearing formally concluded at 1:10 p.m.”

and “Rule 35 did not empower the district court at 3:50 p.m. to ‘modify’ Mr.

Hendrix’s sentence by tacking on an additional year of supervised release”). We

also examined whether the district court had jurisdiction under 18 U.S.C. §

3583(e)(2) to extend Hendrix’s original, unexpired term of supervised release at

the second hearing. Id. at 819-20. We concluded “Hendrix’s original, unexpired

term of supervised release could have been extended at the second revocation

hearing despite being revoked at the first.” Id. at 819 (discussing 18 U.S.C. §

3583(e)(2)). The record, however, did not confirm whether the district court

relied on § 3583(e)(2) when it imposed the additional year of supervised release.

Accordingly, although the mandate directed the district court to “reinstate the

sentence it announced at the first revocation hearing,” the court was also

instructed to “consider invoking its jurisdiction under 18 U.S.C. § 3583(e)(2).”

Id. at 821.

      On remand, the district court, inter alia, invoked its authority under

§ 3583(e)(2) to extend Hendrix’s original term of supervised release by one year.

In so doing, the court rejected Hendrix’s arguments that the discussion of

§ 3583(e)(2) in Hendrix I is dicta and § 3583(e)(2) is inapplicable when a term of



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supervised release has been revoked, thus rendering the latter an impermissible

basis on which to impose the additional year of supervision.

III.   Discussion

       The district court’s decision to impose the one-year term of supervised

release was based on its conclusion that Hendrix would benefit from services

available through the United States Probation Office. Hendrix does not challenge

this conclusion. He, instead, argues the district court did not have authority under

§ 3583(e)(2) to extend his original term of supervision. Recognizing this court

specifically ruled in Hendrix I that the district court did have such authority,

Hendrix asserts the law of the case doctrine does not preclude reconsideration of

the issue. 1

       Under the law of the case doctrine, “a court should not reopen issues

decided in earlier stages of the same litigation.” Agostini v. Felton, 521 U.S. 203,

236 (1997); see also Bishop v. Smith, 760 F.3d 1070, 1082 (10th Cir. 2014). As

Hendrix correctly asserts, the doctrine is discretionary, not mandatory, Bishop,

760 F.3d at 1082, and this court has identified “three exceptionally narrow

circumstances” under which it will not adhere to the doctrine: “(1) when the

evidence in a subsequent trial is substantially different; (2) when controlling

       1
       Hendrix has abandoned his claim that the decision in Hendrix I was dicta.
See Wilmer v. Bd. of Cty. Comm’rs, 69 F.3d 406, 409 (10th Cir. 1995) (“Law of
the case principles do not bar a district court from acting unless an appellate
decision has issued on the merits of the claim sought to be precluded.” (quotation
omitted)).

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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.” United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998).

Hendrix argues the third exception is applicable here because the decision in

Hendrix I is not supported by Supreme Court precedent and the reasoning behind

the decision is not sound.

      We first address the government’s argument that Hendrix has waived or

forfeited the issue he seeks to raise on appeal. See United States v. Carrasco-

Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007) (setting out the distinction between

waiver and forfeiture). The government’s argument is compelling. On remand,

Hendrix asserted Hendrix I was wrongly decided but opposed application of its

ruling on the grounds the discussion of § 3583(e)(2) was dicta. Having reviewed

the transcript of the sentencing hearing held on January 28, 2016, we can state,

without hesitation, that the law of the case doctrine was not referenced or argued

by Hendrix. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir.

2011) (“[I]f the theory simply wasn’t raised before the district court, we usually

hold it forfeited.”). The sentencing transcript is consistent with the brief Hendrix

submitted in response to the district court’s order to show cause; there is no




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mention of the law of the case doctrine or any exception thereto. 2 Thus, we have

no doubt Hendrix’s law of the case argument is forfeited.

      The government argues this court should decline to consider Hendrix’s

argument and deny his appeal because he failed to argue for the application of

plain error review of the forfeited claim in his opening brief and, thus, has waived

the issue presented on appeal. Id. at 1128-29 (holding forfeited theories will be

reversed on appeal only if the appellant can satisfy the plain error standard); id. at

1131 (holding, in a civil matter, that the failure to argue for plain error review of

a forfeited claim “marks the end of the road for an argument for reversal”).

Hendrix counters that jurisdictional challenges cannot be waived or forfeited.

Huerta v. Gonzales, 443 F.3d 753, 755 (10th Cir. 2006) (“Jurisdictional

challenges can be made by any party or the court at any time and are not subject

to waiver or forfeiture.”). Hendrix’s argument misapprehends the nature of the

law-of-the-case issue he asks us to address in the instant matter. This appeal does

not involve de novo review of a jurisdictional question—that question has already

been resolved against Hendrix in Hendrix I. Instead, the only issue now before

this court is whether the district court erred by applying the law of the case

doctrine on remand. “The circuits have agreed that [the law of the case doctrine]

applies to a situation . . . where a prior panel of the same court resolved a


      2
      We sua sponte supplement the record in this matter with the record in
Hendrix I.

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jurisdictional matter in an earlier appeal.” Bishop, 760 F.3d at 1084 (ruling any

argument that a jurisdictional issue is not subject to the law of the case doctrine

“is squarely foreclosed by Supreme Court precedent”).

      Notwithstanding Hendrix’s forfeiture of the law-of-the-case issue, he is not

entitled to the relief he seeks.

      The law of the case doctrine posits that when a court decides upon a
      rule of law, that decision should continue to govern the same issues
      in subsequent stages in the same case. . . . [W]hen 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.

Alvarez, 142 F.3d at 1247 (quotations omitted). Hendrix attempts to avoid this

result by arguing the ruling in Hendrix I was clearly erroneous and manifestly

unjust and, thus, the district court erred by following it. See Bishop, 760 F.3d at

1085 (setting out the three narrow exceptions to the law of the case doctrine).

Specifically, he asserts the ruling is clearly erroneous because (1) it was based on

Supreme Court dicta and (2) ignored the entire statutory scheme of 18 U.S.C.

§ 3583.

      The Fourth Circuit has described the high burden of the clearly erroneous

exception as requiring an appellant to show the prior decision was “dead wrong”

not “just maybe or probably wrong.” TFWS, Inc. v. Franchot, 572 F.3d 186, 194

(4th Cir. 2009) (quotations omitted). Hendrix attempts to meet his burden in two

ways. First, he argues the ruling in Hendrix I is supported only by dicta from the


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Supreme Court’s decision in Johnson v. United States, 529 U.S. 694 (2000). This

court, however, “considers itself bound by Supreme Court dicta almost as firmly

as by the Court’s outright holdings” Gaylor v. United States, 74 F.3d 214, 217

(10th Cir. 1996). Further, as Hendrix himself concedes, other circuit courts of

appeals have also relied on Johnson for the proposition that a district court may

extend a term of supervised release even if it was previously revoked. See, e.g.,

United States v. Winfield, 665 F.3d 107, 112 (4th Cir. 2012) (holding the district

court’s revocation of defendant’s term of supervised release “did not end the

court’s jurisdiction over [defendant’s] release”); United States v. Vargas, 564

F.3d 618, 622-23 (2d Cir. 2009) (concluding the revocation of a term of

supervised release was not the equivalent to its termination and, thus, the district

court had authority to extend the defendant’s term of supervised release even

though it had been revoked). Although Hendrix argues these cases were also

wrongly decided, their conformity with Hendrix I significantly undermines his

assertion that Hendrix I is “dead wrong.”

      Hendrix also asserts the Hendrix I panel failed to consider the entire

statutory scheme of 18 U.S.C. § 3583 when it concluded § 3583(e)(2) gave the

district court jurisdiction to extend his revoked term of supervised release. The

fallacy of this argument is apparent from the record. In the reply brief Hendrix

filed in Hendrix I, he vigorously challenged the government’s position that the

district court had authority under § 3583(e)(2) to extend his term of supervised

                                         -8-
release. Hendrix’s arguments, therefore, were fully considered by the prior panel.

Although Hendrix now presents a more detailed and thorough argument in support

of his position, he has not identified any impediment that foreclosed him from

making these arguments in Hendrix I. In any event, these expanded arguments do

not persuade us that the decision in Hendrix I is “dead wrong.”

      Hendrix I contains a comprehensive discussion of the reasoning behind its

conclusion that the district court retained jurisdiction over Hendrix’s revoked

term of supervised release. Relying on the Supreme Court’s decision in Johnson,

this court concluded Hendrix’s term of supervised release, although revoked, was

not extinguished because it was not terminated or expired. Hendrix I, 630 F.

App’x at 819. Because Hendrix’s supervision was not extinguished, the district

court retained authority to extend the term. 18 U.S.C. § 3583(e)(2) (authorizing a

sentencing court to extend a defendant’s term of supervised release “at any time

prior to the expiration or termination of the term”). Hendrix has not directed this

court to any decision that contravenes the holding in Hendrix I regarding a district

court’s authority to extend a revoked term of supervised release pursuant to

§ 3583(e)(2).

      Because the decision in Hendrix I is not clearly erroneous, it constitutes

law of the case and the district court did not err by following the decision when it

extended Hendrix’s term of supervised release.




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IV.   Conclusion

      The district court’s judgment extending Hendrix’s term of supervised

release is affirmed.

                                        ENTERED FOR THE COURT


                                        Michael R. Murphy
                                        Circuit Judge




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