                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 14a0684n.06

                                          No. 13-2301

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                 FILED
                                                                                 Sep 03, 2014
                                                                             DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                       )
                                                )
           Plaintiff-Appellee,                  )         ON APPEAL FROM THE
                                                )         UNITED STATES DISTRICT
v.                                              )         COURT FOR THE EASTERN
                                                )         DISTRICT OF MICHIGAN
TYREE WASHINGTON,                               )
                                                )
                                                                   OPINION
           Defendant-Appellant.                 )
                                                )


Before: MOORE and STRANCH, Circuit Judges; HOOD, District Judge.*

       KAREN NELSON MOORE, Circuit Judge. Tyree Washington was convicted and

sentenced for his role in a series of carjackings. He appealed the convictions and sentence. In a

previous decision, we affirmed the convictions, but vacated his sentence and remanded to allow

the district court to reorder for sentencing the three convictions under 18 U.S.C. § 924(c). See

United States v. Washington, 714 F.3d 962 (6th Cir. 2013).1

       Before Washington was resentenced, the Supreme Court decided Alleyne v. United

States, 133 S. Ct. 2151 (2013), holding that a jury, not a judge, must find that a defendant

brandished a firearm during and in relation to a crime of violence under § 924(c). Id. at 2162–



       *
         The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern
District of Kentucky, sitting by designation.
       1
        The prior opinion provides an ample background on the crimes committed and the court
proceedings. Consequently, we will not duplicate those details here except as necessary to our
reasoning.
No. 13-2301
United States v. Washington


63. Without such a finding by the jury, the district court could not sentence the defendant to the

enhanced statutory mandatory-minimum sentence for brandishing. See id.

       During resentencing, Washington argued that Alleyne required not only that a jury must

find that Washington brandished the gun in each of the carjackings, but also that, in order to

apply § 924(c)’s 25-year mandatory-minimum sentence to “second or subsequent” convictions,

the jury had to find that the convictions were “second or subsequent.” The district court rejected

this argument based on our decision in United States v. Mack, 729 F.3d 594, 606–09 (6th Cir.

2013). In Mack, we reasoned that a failure to submit the brandishing determination to a jury was

plain error, but this did not affect the defendant’s substantial rights because it was harmless as

the brandishing question was not in dispute in that case. Id. We also rejected an identical

argument regarding consecutive 25-year sentences. See id. at 609 (following Almendarez-Torres

v. United States, 523 U.S. 224, 247 (1998), while acknowledging that Almendarez-Torres

“stand[s] on shifting sands”).

       In this appeal, Washington presses both arguments that he made at his resentencing. As

to the brandishing element, Washington argues that Mack is distinguishable because in Mack the

argument was made for the first time on appeal, thus leading to plain-error review, while here

Washington made the argument at his resentencing. As to the “second or subsequent” sentences,

Washington acknowledges that Mack and Almendarez-Torres tie our hands, but presses the

argument in order to preserve it.




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No. 13-2301
United States v. Washington


       Washington may have a good argument that his case is indeed distinguishable from

Mack. Stronger yet would be an argument that Washington’s sentence for brandishing a firearm

was an impermissible constructive amendment of his indictment. See United States v. Hackett, --

F.3d --, 2014 WL 3865994, at *6–7 (6th Cir. 2014) (holding that where an indictment charges

only “use and carry,” a post-trial, ten-year, mandatory-minimum sentence for discharging a

firearm is a constructive amendment of the indictment, an error not subject to harmless error

analysis). But see United States v. Yancy, 725 F.3d 596, 601–03 (6th Cir. 2013) (rejecting a

similar argument where the defendant pleaded guilty, admitting to brandishing a firearm and

acknowledging through counsel that he understood the consequences of such an admission).

Washington has failed to make this argument that there was a constructive amendment of the

indictment, and we therefore do not consider it.

       We cannot review either of the substantive arguments Washington does raise because our

previous remand was a limited remand. See Washington, 714 F.3d at 965 (stating that “[b]ecause

we agree that the district court erroneously imposed the defendant’s sentences under § 924(c) in

the order in which he committed each crime, we VACATE the judgment of the district court on

this ground only, and REMAND for the limited purpose of recalculating the defendant's

sentence”); id. at 971 (concluding that “[t]he district court’s judgment is VACATED IN PART

with respect to the ordering of the defendant’s convictions for sentencing under § 924(c)”); see

also United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999) (“Limited remands explicitly

outline the issues to be addressed by the district court and create a narrow framework within



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United States v. Washington


which the district court must operate.”).      “Under the doctrine of the law of the case,

determinations of the court of appeals of issues of law [such as the scope of a remand] are

binding on both the district court on remand and the court of appeals upon subsequent appeal.”

Campbell, 168 F.3d at 265. The district court recognized that our remand was limited to

reviewing the ordering of the § 924(c) convictions only. R. 173 (Re-Sentencing Tr. at 23) (Page

ID #1664). And we are so limited as well.

       As the district court has followed our instructions with regard to reordering the § 924(c)

convictions, we AFFIRM the district court’s judgment.




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