                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0662n.06

                                         Case No. 16-1203

                           UNITED STATES COURT OF APPEALS
                                                                                          FILED
                                                                                    Dec 09, 2016
                                FOR THE SIXTH CIRCUIT                           DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                               )        ON APPEAL FROM THE
                                                        )        UNITED STATES DISTRICT
       Plaintiff-Appellee,                              )        COURT FOR THE WESTERN
                                                        )        DISTRICT OF MICHIGAN
v.                                                      )
                                                        )
JASON PAUL ARNOLD,                                      )                   OPINION
                                                        )
       Defendant-Appellant.                             )

BEFORE: McKEAGUE, KETHLEDGE, and STRANCH, Circuit Judges.

       PER CURIAM. Jason Arnold was convicted under 18 U.S.C. § 922(g)(1) for being a

felon in possession of a firearm and sentenced to 60 months in prison, a nine-month upward

variance from the upper end of the advisory Guidelines range. A different panel of this court

affirmed Arnold’s conviction, but vacated his sentence and remanded for resentencing, finding

that the district court had erroneously lengthened his prison sentence in part to ensure he

received effective mental health treatment. See United States v. Arnold (Arnold I), 630 F. App’x

432, 433 (6th Cir. 2015).      At resentencing, the district court imposed the same 60-month

sentence, this time rooted in the need to protect the public, punish Arnold for his dangerous

behavior, and deter him from adding to an already long list of criminal convictions. Arnold once

again appeals, arguing solely that the district court violated “the letter and spirit” of the Arnold I
Case No. 16-1203
USA v. Jason Paul Arnold

mandate, which he believes required the district court to eliminate or reduce the upward variance

of his sentence. We affirm.

       On remand, district courts are bound by the scope of the mandate ordered on appeal, and

we review a district court’s interpretation of that mandate de novo, “taking into account the letter

and spirit of the mandate.” Carter v. Mitchell, 829 F.3d 455, 463 (6th Cir. 2016) (quoting United

States v. Brika, 487 F.3d 450, 456 (6th Cir. 2007)). The “spirit” of a mandate is most clearly

determined by examining the language of the mandate itself, see United States v. Turner, 436 F.

App’x 599, 600 (6th Cir. 2011), and remands for “resentencing” are general remands, which

“effectively wipe[] the slate clean” and allow district courts to “redo the entire sentencing

process,” United States v. McFalls, 675 F.3d 599, 606 (6th Cir. 2012). The only requirement is

that a district court “must remain consistent with the remand.” McFalls, 675 F.3d at 606.

       Because the “letter” of the Arnold I ruling “VACAT[ING] Arnold’s sentence, and

REMAND[ING] this case for resentencing,” constituted a general remand, the district court was

free to sentence Arnold anew. Arnold I, 630 F. App’x at 438. This included the authority to re-

impose a sentence of identical length if it found alternative, permissible reasons for doing so.

See, e.g., United States v. Obi, 542 F.3d 148, 155–56 (6th Cir. 2008) (upholding the same 300-

month sentence following a general remand because the district court provided a different

justification for the above-Guidelines sentence: Obi’s “egregious conduct on the night of the

crime”); United States v. Censke, 534 F. App’x 382, 386 (6th Cir. 2013) (affirming resentence of

same length since it was based on a need to protect prior victims and the public given

defendant’s “history of instability, his numerous threats, and his continued denial of

wrongdoing”). Further, there was nothing in the “spirit” of Arnold I that required a reduction of




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USA v. Jason Paul Arnold

Arnold’s sentence; the only requirement was that it not be “driven by Arnold’s need for mental

health treatment while incarcerated . . . .” See Arnold I, 630 F. App’x at 437.

       The district court adequately addressed the Arnold I panel’s concerns by explaining that

Arnold’s sentence was premised on the need for “just punishment,” “to afford a deterrence to

continued conduct,” and “to protect the public,” all proper sentencing considerations. In fact, the

Arnold I panel explicitly stated that it was not error for the district court to “extend[] Arnold’s

sentence on the grounds that his anger at the time of his arrest posed a potential future threat to

public safety.” 630 F. App’x at 437. And that is exactly what the court did. Even Arnold

acknowledges that the court “attributed the 9-month variance entirely to the statutory objective

of protecting the public,” an expressly permitted purpose under 18 U.S.C. § 3553(a)(2)(C). See

Plaintiff Br. at 6. Because the Arnold I general remand provided the district court with this

discretion, there is no mandate rule violation.

       To the extent the district court did discuss Arnold’s mental state at resentencing, it did so

in a way that did not run afoul of Tapia v. United States, 564 U.S. 319 (2011) or United States v.

Moses, 106 F.3d 1273 (6th Cir. 1997), two cases upon which the Arnold I mandate was

predicated.   Unlike in Tapia, where the defendant’s sentence was fixed to ensure her

participation in a specific drug treatment program, Arnold’s new sentence was not based on

rehabilitative concerns at all. See Tapia, 564 U.S. at 335. Here the district court made clear that

Arnold’s sentence was “a commitment for criminal behavior” and merely recommended that

Arnold be placed in a facility where he could receive treatment, a move expressly endorsed,

rather than prohibited, by Tapia. See id. at 334 (noting that it is “very right” for a court to

“discuss[] the opportunities for rehabilitation within prison”).




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USA v. Jason Paul Arnold

       Moses, too, is inapposite. There, the district court used an upward departure as a proxy

for continued mental health commitment. Moses, 106 F.3d at 1275. But as this court found—

and the Arnold I panel emphasized—even if a person’s mental illness results in violent behavior

that creates a danger to the community, it is civil commitment, not a longer sentence, that is the

appropriate course. Arnold I, 630 F. App’x at 438 (citing Moses, 106 F.3d at 1280–81). Unlike

Moses, though, Arnold was not being held in a mental health facility pending sentencing nor was

he rendered incompetent by any mental illness. At resentencing, the district court did not

attribute Arnold’s dangerousness to a perceived mental illness that somehow justified a longer

sentence.      Instead, the district court grounded the upward variance in the “nature and

circumstances” of the offense and Arnold’s “history and characteristics,” factors rightly

considered when imposing a sentence. See 18 U.S.C. § 3553(a)(1). Arnold’s purchase of a high-

powered rifle and scope on the heels of Child Protective Services’ removal of his kids from his

custody created what the district court described as a “dangerous situation,” heightened by

Arnold’s manifest fixation on “revenge,” “lack of respect for [the] law,” and “highly volatile”

personality.

       Lastly, to the extent the court discussed U.S.S.G. § 5H1.3 (Mental and Emotional

Conditions) and § 5K2.0 (Aggravating Circumstances), we note that both of these provisions

may be taken into account when relevant to calculating a sentence or condition of supervised

release. It suffices to say that the mandate rule does not prohibit a district court from considering

all applicable sentencing factors following a general remand.          See, e.g., United States v.

Campbell, 168 F.3d 263, 268 (6th Cir. 1999) (recognizing that de novo resentencing is favored

since calculation of a sentence under the Guidelines is complex and involves many interrelated

and dependent variables).


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USA v. Jason Paul Arnold

       A prior panel of this court mandated that Arnold be resentenced without account for his

need for mental health treatment. The district court abided by that mandate and resentenced him

on the basis of appropriate penological concerns. We therefore AFFIRM Arnold’s sentence.




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