                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                           March 7, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 18-4012
                                                  (D.C. No. 2:10-CR-01088-DN-1)
JEFFREY CHARLES ZANDER,                                      (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HOLMES, PHILLIPS, and EID, Circuit Judges.
                  _________________________________

      Jeffrey Charles Zander was convicted of mail fraud, wire fraud, money

laundering, and failure to file tax returns. On direct appeal, this court affirmed his

convictions, but remanded for resentencing on restitution. United States v. Zander,

794 F.3d 1220, 1234 (10th Cir. 2015) (Zander I). An appeal after the resentencing

resulted in a second remand for further consideration of restitution. United States v.

Zander, 705 F. App’x 707, 711 (10th Cir. 2017) (unpublished) (Zander II). After

being sentenced a third time, Mr. Zander again appealed. That merits appeal,

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
No. 17-4156, remains pending. This appeal is from the district court’s denial of

Mr. Zander’s motion for release pending a decision in No. 17-4156. We affirm.

       We review both purely legal questions and mixed questions of law and fact de

novo, “but we accept the district court’s findings of historical fact which support [the

detention] decision unless they are clearly erroneous.” United States v. Cisneros,

328 F.3d 610, 613 (10th Cir. 2003). Under 18 U.S.C. § 3143(b), for release pending

appeal Mr. Zander must establish he is not likely to flee or to pose a danger to the

safety of any other person or the community; the appeal is not for the purpose of

delay; and, as relevant here, the appeal “raises a substantial question of law or fact

likely to result in . . . a reduced sentence to a term of imprisonment less than the total

of the time already served plus the expected duration of the appeal process.”

       The only issue in this appeal is whether Mr. Zander has identified a substantial

question of law likely to result in a reduced sentence that will expire before this court

decides No. 17-4156.1 “[A] substantial question is one of more substance than would

be necessary to a finding that it was not frivolous. It is a close question or one that

very well could be decided the other way.” United States v. Affleck, 765 F.2d 944,

952 (10th Cir. 1985) (en banc) (internal quotation marks omitted).



       1
         Mr. Zander asserts that the district court used the wrong standard, in that it
stated, in summarizing its decision, that he had “not met his burden of proving his
motion raises a substantial question of law or fact likely to result in a reversal or a
sentence less than the total time he has already served,” Resp. Br., Attach. L at 3,
rather than the total of time served plus the expected duration of the appeal process.
The summary, however, appears to have been a harmless misstatement, because
earlier in its decision the district court had recited the correct standard. See id. at 1-2.
                                             2
      Mr. Zander’s bail memorandum brief presents one argument—that the district

court erred in calculating the Guidelines range for his three failure-to-file

convictions. Mr. Zander states that the district court erroneously applied an

enhancement for using sophisticated means to increase the offense level for those

convictions. See United States Sentencing Guideline Manual § 2T1.1(b)(2)

(U.S. Sentencing Comm’n 2012). Without that enhancement, he asserts, the

maximum Guidelines range would be 57 months instead of 63 months, and he will

have served more than 57 months of imprisonment before this court decides

No. 17-4156.

      Mr. Zander did not raise his sophisticated-means argument at his first

sentencing or during Zander I. He did raise it as part of his second sentencing, but

the district court held that the issue was beyond the scope of the Zander I mandate,

and this court affirmed that determination. See Zander II, 705 F. App’x at 710. After

Zander II, the district court conducted two re-sentencings. In the earlier

re-sentencing, the district court declined to consider the sophisticated-means issue,

holding it to be outside the scope of the mandate, consistent with Zander II. But in

the later re-sentencing, the district court rejected the sophisticated-means issue on the

merits. In denying Mr. Zander’s motion for release, the district court concluded that

“the sentencing enhancement for sophisticated means was reviewed and it was

determined it applied under the facts of this case.” Resp., Attach. L at 2.

      Relying on Zander II, the government argues that the sophisticated-means

issue is not likely to reduce Mr. Zander’s term of imprisonment because it was

                                            3
outside the scope of the Zander I and Zander II mandates.2 In the alternative, the

government argues that the enhancement properly applies. We need not consider the

alternative argument, however, because the merits panel in No. 17-4156 is unlikely to

consider the sophisticated-means argument.

      Because Zander II held that the sophisticated-means argument was beyond the

scope of the Zander I mandate and affirmed the district court’s decision not to

address it, the panel in No. 17-4156 likely will conclude that the issue also was

beyond the scope of the Zander II mandate. “Under the law of the case doctrine,

when a court decides an issue of law, that decision should govern all subsequent

stages of the litigation.” Padilla-Caldera v. Holder, 637 F.3d 1140, 1145 (10th Cir.

2011); see also Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995)

(“[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.”). “The mandate rule, in

turn, generally requires trial court conformity with the articulated appellate remand.”

Padilla-Caldera, 637 F.3d at 1145 (internal quotation marks omitted). In light of the

law of the case doctrine and the mandate rule, the panel hearing No. 17-4156 may

well conclude that the district court should not have reached the merits of the

sophisticated-means argument.



      2
        Contrary to Mr. Zander’s assertions in his reply brief, the government did
argue before the district court that Zander II precluded the sophisticated-means
argument. See Resp., Attach. H at 2-4; id., Attach. I at 94.
                                           4
      The law of the case doctrine and the mandate rule are not jurisdictional, and

they may give way in exceptional circumstances. See Padilla-Caldera, 637 F.3d at

1145. With regard to the mandate rule, we have identified one such exceptional

circumstance as “blatant error from the prior sentencing decision [that] would result

in serious injustice if uncorrected.” United States v. Moore, 83 F.3d 1231, 1234

(10th Cir. 1996); see also United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir.

1998) (recognizing an exception to the law of the case doctrine “when the decision

was clearly erroneous and would work a manifest injustice”). But it appears unlikely

that Mr. Zander will be able to show in No. 17-4156 that the district court found any

such exceptional circumstances that would allow it to decide the merits of the

sophisticated-means enhancement.

      Mr. Zander argues in his reply brief that under Fed. R. Crim. P. 32(i)(1)(D), a

district court at sentencing “may, for good cause, allow a party to make a new

objection at any time before sentence is imposed.” But he has failed to show where

the district court considered and found good cause for making a new objection;

rather, it appears that the district court mistakenly believed it had previously

addressed the merits of the issue. It also is unclear whether the merits panel will

determine that Rule 32(i)(1)(D) should apply notwithstanding the law of the case

doctrine and the mandate rule.




                                            5
      The motion for leave to file a reply brief is granted, and the Clerk is directed to

file Mr. Zander’s reply brief as of the date of this decision. The denial of release

pending a decision in No. 17-4156 is affirmed.



                                            Entered for the Court
                                            Per Curiam




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