                     NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                File Name: 17a0580n.06

                                                Case No. 16-4015

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

                                                                                                  FILED
                                                                                           Oct 16, 2017
UNITED STATES OF AMERICA,                                     )                       DEBORAH S. HUNT, Clerk
                                                              )
         Plaintiff-Appellee,                                  )
                                                              )        ON APPEAL FROM THE UNITED
v.                                                            )        STATES DISTRICT COURT FOR
                                                              )        THE NORTHERN DISTRICT OF
JESSE J. PAWLAK,                                              )        OHIO
                                                              )
         Defendant-Appellant.                                 )
                                                              )
____________________________________                          )


Before: KEITH, ROGERS, and McKEAGUE, Circuit Judges.

         DAMON J. KEITH, Circuit Judge. Appellant Jesse J. Pawlak pled guilty to four counts

of unlawful possession of a firearm or ammunition as a felon, in violation of 18 U.S.C.

§ 922(g)(1), and was sentenced by the district court to 105 months of incarceration. Pawlak

appealed.      We vacated his convictions and remanded the case to the district court for

resentencing. See United States v. Pawlak, 822 F.3d 902, 913 (6th Cir. 2016), abrogated by

Beckles v. United States, 137 S. Ct. 886 (2017).1 On appeal, Pawlak challenges the sentence

imposed by the district court on remand, claiming that the district court erred in failing to



1
 The Supreme Court in Beckles granted certiorari to resolve a conflict among the Courts of Appeals regarding the
question of whether the residual clause of U.S.S.G. § 4B1.2(a) was void for vagueness post-Johnson. The Court
ultimately determined that “the Guidelines are not subject to a vagueness challenge under the Due Process
Clause[,]” thus, “[t]he residual clause in § 4B1.2(a)(2) . . . is not void for vagueness.” Beckles, 137 S. Ct. at 892.
Case No. 16-4015, United States v. Pawlak


conduct a full resentencing hearing and impermissibly limited the scope of reconsideration on

remand.


                                                         I.

        On September 9, 2014, Pawlak was indicted by a grand jury on three counts of unlawful

possession of a firearm by a felon. He was later charged, by superseding indictment, with a

fourth count of the same offense, for the sale of firearms to an undercover officer. On December

15, 2014, Pawlak pled guilty to the superseding indictment and was sentenced by the district

court to 105 months of incarceration.2 Pawlak timely appealed. On appeal, Pawlak raised an

issue of first impression before this court, arguing that the residual clause of the United States

Sentencing Guidelines (“the Guidelines”) § 4B1.2(a) (career offender clause) was

unconstitutionally vague in light of the Supreme Court’s decision in Johnson v. United States,

135 S. Ct. 2551 (2015). Additionally, Pawlak challenged the district court’s application of

U.S.S.G § 2K2.1(b)(5) (“Section 2K2.1(b)(5)”), which provides for the application of a four-

level enhancement to the offense calculation for trafficking a firearm.


        This court, without opposition from government counsel, concluded that the Guidelines’

residual clause, which mirrored the language invalidated in Johnson, was unconstitutionally

vague. Accordingly, we remanded for resentencing, finding that “Pawlak’s Ohio third-degree


2
  During the first sentencing hearing, Pawlak’s presentence investigation report categorized his offense level at 26,
pursuant to U.S.S.G § 2K2.1(a)(1), because of Pawlak’s prior convictions for third-degree burglary and drug
trafficking, and the use of a semiautomatic weapon during the commission of the underlying offense. An additional
two-level enhancement was recommended by the probation officer for the number of firearms involved, after a
three-level reduction was applied for acceptance of responsibility. Pawlak’s criminal history category was
calculated as a category IV. The government then objected to the probation officer’s recommendation and requested
that a four-level enhancement for trafficking firearms be imposed under Section 2K2.1(b)(5). The court granted the
government’s request, concluding that Pawlak knew he was transferring weapons to a person who would possess
them unlawfully. Accordingly, a base offense level of 29 and criminal history category of IV was deemed
appropriate by the court, which provided for a range of 121-151 months of incarceration. Upon further
contemplation, and acknowledgement that the offense carried a 120-month statutory maximum, the court applied a
downward variance of four levels and sentenced Pawlak to 105 months.

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Case No. 16-4015, United States v. Pawlak


burglary offense [wa]s no longer a qualifying conviction,” and did not warrant the enhancement

previously applied to him as a defendant with two prior felony convictions for crimes of violence

or controlled substance offenses under U.S.S.G § 2K2.1(a)(1). Pawlak, 822 F.3d at 911.

        Next, the court addressed, on the merits, Pawlak’s second contention that the district

court improperly applied the four-level enhancement for trafficking a firearm to his offense

calculation. U.S.S.G. § 2K2.1(b)(5) provides, “[i]f the defendant engaged in the trafficking of

firearms[,]” application of a four-level enhancement is permissible. To prove that the defendant

engaged in the trafficking of a firearm, the government must show:

       (A) . . . the defendant[,]

           (i) transported, transferred, or otherwise disposed of two or more firearms to
           another individual, or received two or more firearms with the intent to
           transport, transfer, or otherwise dispose of firearms to another individual; and
           (ii) knew or had reason to believe that such conduct would result in the
           transport, transfer, or disposal of a firearm to an individual

               (I) whose possession or receipt of the firearm would be unlawful; or
               (II) who intended to use or dispose of the firearm unlawfully.

U.S.S.G. § 2K2.1 cmt. n.13. At the initial sentencing, the district court found that Pawlak

“certainly had reason [] to know that [he] w[as] selling to someone who could not lawfully

possess or receive these weapons.” The court pointed to several factors, including the quantity

and type of firearms exchanged, the price at which they were sold, and the individual to whom

they were sold, which provided sufficient circumstantial evidence for the court to find by a

preponderance of the evidence that the four-level enhancement was applicable to Pawlak’s

offense calculation.

       On appeal, this court concluded that the district court’s reasoning was sound, and

affirmed the application of Section 2K2.1(b)(5) to Pawlak’s calculation. We then concluded “for

the reasons stated in Part III[,]” which discussed the unconstitutionality of the residual clause,

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Case No. 16-4015, United States v. Pawlak


that Pawlak’s sentence must be vacated “[b]ecause Pawlak’s third-degree burglary offense is no

longer a qualifying felony for purposes of Guidelines § 2K2.1(a)(1),” and remanded for

resentencing. Pawlak, 822 F.3d at 913.

       On remand, the district court held a resentencing hearing, during which it acknowledged

receipt of memoranda filed by both parties regarding resentencing and the scope of the remand.

The court also permitted defense counsel to offer evidence and argument by way of oral proffer

during the hearing. After consideration of the memoranda and careful review of this court’s

opinion on direct appeal, the district court determined that, in light of this court’s holding in Part

III of the appellate opinion, the remand was limited to resentencing on that issue alone.

Accordingly, the district court maintained its prior determination that the four-level enhancement

for trafficking a firearm was appropriate and sentenced Pawlak to 71 months of incarceration, in

accordance with the recommendation of the probation office’s revised presentence investigation

report. In the present appeal, Pawlak challenges the district court’s interpretation of the remand

mandate as limited, and the court’s denial of a full resentencing hearing.

                                                 II.

       We review the interpretation of a mandate de novo. United States v. Moore, 131 F.3d

595, 598 (6th Cir. 1997). Pursuant to the mandate rule or the law of the case doctrine, “upon

remand of a case for further proceedings after a decision by the appellate court, the trial court

must proceed in accordance with the mandate and the law of the case as established on appeal . .

. implement[ing] 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. Moored, 38 F.3d 1419,

1421 (6th Cir. 1994).




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Case No. 16-4015, United States v. Pawlak


        “Unless otherwise specified, a remand order is presumed to be general.” United States v.

McFalls, 675 F.3d 599, 604 (6th Cir. 2012) (citing United States v. Helton, 349 F.3d 295, 299

(6th Cir. 2003); Moore, 131 F.3d at 598). “A limited remand must convey clearly the intent to

limit the scope of the district court’s review.” United States v. Campbell, 168 F.3d 263, 267 (6th

Cir. 1999).

                                                 A.

       As the court noted in Campbell, no definitive set of criteria has been established to

determine whether a remand is appropriately construed as limited; however, over time, we have

delineated several indicating factors. 168 F.3d at 266.

       We have made several indications of what language suffices to demonstrate the requisite

“intent” for a district court to limit its scope of review on remand. In Moored, the court

instructed that we consider: (1) “whether the [] issue was expressly or impliedly decided by this

court in Defendant’s first appeal, and . . .” (2) “whether this court’s mandate to the district court

was so narrow in scope as to preclude the district court from considering the [] issue.” 38 F.3d at

1421. Section IV of this court’s earlier opinion in this case affirmatively answers the first

question. Therefore, our focus must be directed to the language used to articulate the court’s

intended scope of review.

       Perhaps our narrowest interpretation of the limited remand is reflected in McFalls:

       A limited remand must explicitly outline the issues to be addressed by the district
       court and create a narrow framework within which the district court must operate.
       . . . It must convey clearly the intent to limit the scope of the district court’s
       review. . . . This intent is achieved by outlining the procedure the district court is
       to follow, articulating the chain of intended events with particularity, and leaving
       no doubt as to the scope of the remand. . . . The language used to limit the
       remand should be unmistakeable [sic].




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Case No. 16-4015, United States v. Pawlak


McFalls, 675 F.3d at 604 (citing United States v. Gibbs, 626 F.3d 344, 350-51 (6th Cir. 2010))

(quoting Campbell, 168 F.3d at 268).

         Under the instruction of McFalls, one might misconstrue our analysis of a court’s intent

on remand to be limited to the “explicit[]” and “unmistakable language” articulated by an

appellate court’s mandate, rather than an analysis that evaluates the language articulated in

conjunction with a contextual consideration of the opinion, in toto. See United States v. O’Dell,

320 F.3d 674, 681 (6th Cir. 2003) (“[T]he language must be read with the analysis offered in the

opinion.”) (citation omitted).

         Where no language or contextual indication suggests that the district court’s review

should be constrained, the case law is clear – the case must be reviewed “anew[,]” i.e., de novo.

United States v. Duso, 42 F.3d 365, 368 n.2 (6th Cir. 1994). However, where, as here, the court

has made its intent clear by its resolution of all other issues on appeal, accompanied by limiting

language, limited remand is indicated.

         The language of the mandate at issue in this case reads as follows:

         For the reasons stated in Part III, we vacate Pawlak’s sentence. Because Pawlak’s
         third-degree burglary offense is no longer a qualifying felony for purposes of
         Guidelines § 2K2.1(a)(1), he must be resentenced consistent with this decision.
         We remand for resentencing.

Pawlak, 822 F.3d at 913.3 In O’Dell, we affirmed that limited review of the following

mandate was appropriate:

         Thus, we VACATE the judgment of sentence entered by district court and
         REMAND for re-sentencing without application of the safety valve.



3
 The district court’s interpretation of this mandate as limited was appropriate, even in the absence of our explication
of further direction on remand, particularly where, as here, the “chain of intended events” is non-complex. See
United States v. Kennedy, 683 F. App’x 409, 420 (6th Cir. 2017) (McKeague, J., dissenting) (“But given that we
found the district court did everything right the first time, save considering the [remanded] argument, what else
needed to be said?”).

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Case No. 16-4015, United States v. Pawlak


320 F.3d at 680. We find the mandate in this case to be equally instructive and narrow in scope

as that affirmed in O’Dell. See also Black v. Carpenter, 866 F.3d 734, 741 (6th Cir. 2017)

(affirming limited remand) (“We therefore VACATE the district court’s denial of [defendant’s]

claim and REMAND the case for it to review the record based on the standard set out in

Coleman and consistent with this opinion.”).

       In addition to our consideration of the explicit language, the court’s intent was clear from

the full analysis of both issues raised by Pawlak on appeal and the narrow instruction that the

matter be remanded for the limited purpose outlined in Part III of our earlier opinion. It is

evident, after resolving the enhancement question on the merits, that the court’s sole reason for

remanding the matter for resentencing was to permit the district court to reconsider whether

Pawlak’s burglary offense qualified as a felony under Guidelines § 2K2.1(a)(1), post-Johnson.

Had the court intended for the issue of the four-level enhancement be considered de novo by the

district court, the opinion could have included “Part IV” as an additional ground for remand. See

Pawlak, 822 F.3d at 904-911 (Part III).

       We acknowledge the need for courts to instruct with particularity. As we stated in

Campbell, “[t]he goal of achieving judicial economy through the use of limited remands

becomes futile if appellate court drafting imprecision too frequently results in parties appealing

the scope of the remand itself.” Campbell, 168 F.3d at 268. However, we are hesitant to impose

a requirement of a pre-approved “limiting phrase” to every opinion or order that we intend to be

narrowly remanded. The use of the limited remand would be rendered equally futile if limiting

intent within the larger context of an opinion was overlooked while in search for an explicit

procedural directive. Under a full contextual review of the opinion in Pawlak, to interpret this

court’s mandate as anything more than a limited remand for resentencing in light of the Supreme



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Court’s decision in Johnson would be contrary to the court’s intent, as exemplified by its

complete analysis of the issues challenged on appeal, and contrary to the larger “purpose of the

[mandate] rule—encouraging finality and discouraging wasteful litigation.” O’Dell, 320 F.3d at

680.4

                                                        B.

        Next, we address Pawlak’s contention regarding the law of the case doctrine. The

principle of the law of the case doctrine “generally preclude[s] a lower court from reconsidering

an issue expressly or impliedly decided by a superior court.” Moored, 38 F.3d at 1421; see also

O’Dell, 320 F.3d at 679. Pawlak however argues that this principle does not apply when a case

has been remanded to the district court for resentencing.

         Pawlak cites Duso for the proposition that “. . . an order vacating a sentence and

remanding the case for resentencing directs the sentencing court to begin anew, so that fully de

novo resentencing is entirely appropriate . . . .” 42 F.3d at 368 n.2 (internal quotations and

citation omitted). Duso and other cases discussing the district court’s authority on remand,

recognize that the district court is afforded discretion to review issues previously addressed and

decided by an appellate court de novo, rather than mandated to do so. See Moored, 38 F.3d at

1422 (“[S]everal circuits have given broad discretion to the district court to reconsider

sentencing factors on a sentencing remand.”); United States v. Jennings, 83 F.3d 145, 151 (6th

Cir. 1996) (“[T]he District Court may revisit other findings relating to the previous sentencing

proceedings, and reverse its prior findings.”) (emphasis added); Campbell, 168 F.3d at 266 (“The


4
  Moreover, even if this case was remanded for resentencing, Pawlak would likely receive a sentence comparable to,
if not greater than, the one originally imposed by the district court, given the Supreme Court’s abrogation of our
decision in Pawlak. See Beckles, 137 S. Ct. at 892. The government would no doubt propose that the original
career offender enhancement be reapplied to Pawlak’s offense calculation. See McFalls, 675 F.3d at 607 (6th Cir.
2012) (acknowledging the calculated risk of appealing a sentence computation); United States v. Hughes, 733 F.3d
642, 654-55 (6th Cir. 2013) (observing that, on resentencing, the district court generally applies the Guidelines as
they existed at the time of the original sentencing, unless doing so would be unconstitutional).

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Case No. 16-4015, United States v. Pawlak


policy underlying the presumption of de novo resentencing is to give the district judge discretion

to consider and balance all of the competing elements of the sentencing calculus.” (emphasis

added)). Here, the district court, recognizing its authority to review the entirety of Pawlak’s

appellate issues de novo, thoroughly reviewed the underlying opinion, heard additional evidence

and argumentation at resentencing and ultimately determined that the merits of the issue

regarding the four-level enhancement were decided on appeal, and need not be reviewed anew

on remand. We see no error in the exercise of the district court’s discretion.

                                                     C.

        Last, Pawlak challenges the district court’s failure to conduct an evidentiary hearing at

resentencing. Given our conclusion with regard to the appropriately limited scope of action

conducted by the district court on remand, Pawlak was not entitled to reargue the application of

the enhancement at resentencing. Nevertheless, the district court “permitted the parties to proffer

the evidence it would have presented had the district court permitted a full resentencing

hearing[,]” in order to determine whether, even on limited review, Pawlak could demonstrate that

“substantially different evidence raised on subsequent trial; a subsequent contrary view of the

law by the controlling authority; or a clearly erroneous decision which would work a manifest

injustice[,]” warranted the exercise of the district court’s discretion to expand review on remand.

Moored, 38 F.3d at 1421.5 Finding none, the district court resentenced Pawlak pursuant to the

limited instruction of this court. Thus, on the facts presented in this case, Pawlak can hardly

demonstrate any prejudicial effect that may have resulted from the district court’s limited review


5
  At the resentencing hearing, the district judge reviewed the resentencing memorandum of the government, which
incorporated its original memorandum, and the resentencing memorandum filed by defense counsel, which
addressed Pawlak’s new evidence and arguments. The district court also heard oral proffers by both parties in
support of their contentions regarding the applicability of U.S.S.G. § 2K2.1(b)(5). Subsequently, the district court
addressed the discrepancies raised by Pawlak with regard to certain evidence proffered by the government and relied
upon by this court on appeal, but ultimately found that there was “still ample evidence to support the finding of the
trafficking enhancement . . . .”

                                                       -9-
Case No. 16-4015, United States v. Pawlak


of his sentence without a full resentencing hearing, where the issue of the enhancement’s

application was effectively reviewed anew by the district court and still determined to be

applicable.

       Therefore, there was no error in the district court’s interpretation of the remand mandate

as one limited to reconsideration of Pawlak’s sentence in light of Johnson. Additionally, no

evidentiary hearing was required on limited remand. See United States v. Garcia-Robles, 640

F.3d 159, 166 (6th Cir. 2011); United States v. Hunter, 646 F.3d 372, 375-76 (6th Cir. 2011).

                                              III.

       For the reasons set forth in this opinion, the judgment of the district court is

AFFIRMED.




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