     Case: 13-40249      Document: 00512539097         Page: 1    Date Filed: 02/20/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit


                                      No. 13-40249                                 FILED
                                                                            February 20, 2014
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk

                                                  Plaintiff-Appellee,
v.

WAYNE EDWARD HANDY,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             U.S.D.C. No. 6:04-cr-91-1


Before STEWART, Chief Judge, and GARZA and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
       Defendant Wayne Edward Handy appeals the district court’s order on
remand clarifying its previous ruling and declining resentencing. We affirm.
                                             I.
       Wayne Edward Handy was charged with being a felon in possession of a
handgun (Count One) and ammunition (Count Two). A jury found him guilty,
and the district court sentenced Handy to 120 months’ imprisonment on each


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-40249
count, to run concurrently, and three years of supervised release. We affirmed.
United States v. Handy, 222 F. App’x 414, 415 (5th Cir. 2007).
      Handy then filed a 28 U.S.C. § 2255 motion. See Handy v. United States,
No. 6:07-CV-300, 2008 WL 4612909, at *1 (E.D. Tex. Oct. 16, 2008). The
district court concluded that Handy’s counsel was ineffective for failing to
object to Handy being charged with two counts under 18 U.S.C. § 922(g), in
light of United States v. Berry, 977 F.2d 915, 919-20 (5th Cir. 1992), which held
that § 922(g) does not permit the simultaneous possession of a firearm and
ammunition to be charged as two separate offenses. See United States v.
Handy, 485 F. App’x 677, 678 (5th Cir. 2012). The district court granted relief
“to the extent that a new Judgment will be entered . . . on only one count, with
the remaining count dismissed.” Handy, 2008 WL 4612909, at *1.
      At resentencing, the district court granted Handy’s request for a revised
presentence report (“PSR”). See Handy, 485 F. App’x at 678. The probation
officer assigned Handy a base offense level of 20. Id. He then assigned a four-
level increase pursuant to U.S.S.G. § 2K2.1(b)(6) because Handy possessed a
firearm “in connection with another felony offense,” namely “the possession of
2.5 grams of cocaine base” at the time of his arrest.     Id. (internal quotation
marks omitted). Handy’s lawyer filed objections to the revised PSR, including
a challenge to the four-level enhancement for Handy’s possession of cocaine
base. Handy, pro se, also submitted objections and a sentencing memorandum
asking for a downward variance.
      At sentencing, Handy, pro se, argued that counsel was ineffective
because he had not filed the objections to the revised PSR that Handy had
asked him to file. The district court denied Handy’s request for new counsel.
The district court nevertheless permitted Handy to file pro se objections to the
revised PSR as an exhibit. The district court also permitted Handy to argue,
pro se, that under United States v. Jeffries, 587 F.3d 690, 692 (5th Cir. 2009),
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                                  No. 13-40249
the U.S.S.G. § 2K2.1(b)(6) enhancement did not apply to him because he
merely possessed the drugs and there was no evidence of drug trafficking.
      The district court overruled Handy’s objection based on Jeffries, as well
as his other objections.     The district court stated that the revised PSR
contained “sufficient indicia of reliability to support its probable accuracy,” and
accepted “the truth of the facts stated in the report by a preponderance of the
evidence.” In accordance with the revised PSR’s guidelines recommendation,
the district court resentenced Handy within the guidelines range to 120
months of imprisonment and dismissed Count Two.
      Handy timely appealed, arguing that the district court procedurally
erred in overruling his objection to the four-level enhancement under U.S.S.G.
§ 2K2.1(b)(6) and that the enhancement was improper under Apprendi v. New
Jersey, 530 U.S. 466 (2000). See Handy, 485 F. App’x at 679-80. Handy also
argued that: (1) his trial counsel was constitutionally ineffective; (2) his
sentence was substantively unreasonable; (3) the district court committed
reversible error by failing to consider mitigating evidence to vary downwardly
from the guidelines range; and, (4) his sentencing hearing denied him due
process. See id. at 680. Additionally, Handy filed a Motion for Judicial Notice,
asking the district court to recognize him as pro se, and a Motion to Correct or
Modify the Record on the basis that the transcripts of the resentencing
hearings are inaccurate.
      We remanded the case in light of our holding in Jeffries, 587 F.3d at 690.
Handy, 485 F. App’x at 680. In Jeffries, we held that drug-possession felonies,
as opposed to drug-trafficking felonies, can trigger U.S.S.G. § 2K2.1(b)(6) only
if the district court makes an affirmative finding that “the firearm facilitated
or had the potential to facilitate the drug possession.” Jeffries, 587 F.3d at 694.
In accordance with Jeffries, we instructed the district court “to enter a finding
as to whether Handy’s possession of the firearm facilitated or had the potential
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                                  No. 13-40249
to facilitate his cocaine possession” and to resentence Handy, “if necessary.”
Handy, 485 F. App’x at 680 (internal quotation marks and citation omitted).
Additionally, we rejected Handy’s Apprendi argument and found his remaining
arguments to be without merit as well. Id. Finally, we denied Handy’s motion
for judicial notice as moot in light of our order granting him the right to proceed
pro se and we also denied his motion to correct or modify the record. Id.
      On remand, the district court stated in a written order that Paragraph
11 of the revised PSR provided the factual predicate for the U.S.S.G. §
2K2.1(b)(6) enhancement and quoted it as follows:
      On April 6, 2004, officers with the Tyler Police Department were
      dispatched to a residence located at 608 West Vance in reference
      to a possible shooting. Upon arrival at the scene, officers noticed
      several individuals who appeared to be walking away from the
      area. A vehicle parked in the driveway of the residence was
      occupied by two individuals who appeared to be ducking down to
      avoid detection. An officer approached the vehicle, and the
      defendant, Wayne Edward Handy (Handy) exited the vehicle from
      the passenger side door. Officers advised Handy of the reason for
      their presence, and asked Handy if he was in possession of a
      firearm. Handy then stated that he was in possession of a firearm
      which was located in his back pocket. Handy was placed in custody
      for officer safety, and a loaded Lorcin .380 semi-automatic
      handgun was removed from his right rear pants pocket. A search
      of Handy’s person revealed a plastic bag containing 2.52 grams of
      cocaine base, and a pill bottle containing several tablets of
      Trazodone, a controlled substance. A criminal history check
      revealed that Handy was a convicted felon. Handy was placed
      under arrest for Possession of Cocaine, Possession of a Dangerous
      Drug, and Felon in Possession of a Firearm and transported to the
      Smith County Jail. 1

      The district court clarified that it found that Handy possessed a firearm
in connection with another felony offense. The district court also found that



      1   PSR ¶ 11.
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                                 No. 13-40249
“[Handy’s] possession of the firearm facilitated, or had the potential of
facilitating his possession of cocaine base” based on the following facts: (1)
shots were fired in the area shortly before police arrived on the scene; (2)
Handy attempted to avoid detection; (3) both the firearm and the drugs were
found on Handy’s person, in close proximity to one another; and, (4) as Handy
was sitting in his vehicle, the gun was in his back pocket, readily accessible to
facilitate his possession of the drugs if the need arose. The district court
further noted that Handy did not object to the facts in the revised PSR and
found that a resentencing was unnecessary. The district court denied as moot
Handy’s motion for a revised PSR, as well as his motion for a downward
departure. Handy timely appeals herein.
                                       II.
      a. Additional sentencing hearing
      Handy argues on appeal that the district court failed to follow this court’s
mandate when it adopted “another part of the PSR” without giving him an
opportunity to object and without having a hearing. He further contends that
the revised PSR lacks sufficient indicia of reliability regarding whether the
firearm facilitated his cocaine base possession because the trial testimony did
not establish that shots were fired, was equivocal as to whether Handy
attempted to hide from police, and failed to reflect where the gun was when
Handy was sitting in the vehicle. He argues that a sentencing hearing was
required to resolve this issue and to allow him the opportunity to object to the
district court’s factual predicate for the enhancement. We disagree.
      “[T]he mandate rule compels compliance on remand with the dictates of
a superior court and forecloses relitigation of issues expressly or impliedly
decided by the appellate court.” United States v. Lee, 358 F.3d 315, 321 (5th
Cir. 2004) (citation omitted). Additionally, “the rule bars litigation of issues
decided by the district court but foregone on appeal or otherwise waived, for
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                                 No. 13-40249
example because they were not raised in the district court.” Id. We did not
order the district court to conduct a sentencing hearing on remand; we
instructed the district court to resentence Handy “if necessary.” See Handy,
485 F. App’x at 680. Insofar as the district court determined that Handy’s
sentence should remain undisturbed, a resentencing hearing was not
necessary, and the district court did not fail to obey this court’s mandate. See
Lee, 358 F.3d at 321.
      Moreover, we have stated that the district court must be given deference
to determine whether a hearing is needed on a particular sentencing issue.
United States v. Henderson, 19 F.3d 917, 927 (5th Cir. 1994). We have also
noted, however, that when a hearing is necessary to protect a convicted
defendant’s due process rights, the failure to hold a hearing is an abuse of
discretion. Id.
      “Generally, a PSR bears sufficient indicia of reliability to permit the
sentencing court to rely on it at sentencing. The defendant bears the burden of
demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence,
the sentencing court may properly rely on the PSR and adopt it.” United States
v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009) (internal quotation marks omitted)
(citing United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995)).
      Here, in its order on remand, the district court merely adopted
Paragraph 11 of the revised PSR clarifying that it served as the factual
predicate for its application of the sentencing enhancement under U.S.S.G. §
2K2.1(b)(6). At the initial resentencing hearing, Handy had the opportunity -
but did not object - to the facts set forth in Paragraph 11 of the revised PSR.
Accordingly, we find that the district court did not err in relying on and
adopting Paragraph 11 on remand. Ollison, 555 F.3d at 164. Further, we find
that the district court did not abuse its discretion in declining to hold a third
sentencing hearing to afford Handy yet another opportunity to object to the
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                                      No. 13-40249
same facts set forth in Paragraph 11. Henderson, 19 F.3d at 927. Accordingly,
we see no error in the district court’s clarified ruling adopting Paragraph 11 of
the revised PSR to serve as the factual predicate for enhancement under
U.S.S.G. § 2K2.1(b)(6).
       b. Denial     of   motion     for   downward       departure      and    sentencing
           memorandum
       Handy also argues that the district court erred when it denied his
request for a downward variance from the guidelines range of imprisonment.
This argument, however, was previously addressed and rejected by this court,
Handy, 485 F. App’x at 680, and, therefore, falls outside the scope of this court’s
remand. See Lee, 358 F.3d at 320-21. 2
                                            III.
       In light of the foregoing, the district court’s modified judgment on
remand against Defendant Wayne Edward Handy is AFFIRMED.                                 All
pending motions are DENIED.




       2 Handy has also filed a motion with this court seeking permission to file a
supplemental reply brief discussing the implications of Alleyne v. United States, 133 S. Ct.
2151, 2163 (2013), asserting that Alleyne supports his arguments under Apprendi. As
Handy’s arguments under Apprendi were previously addressed and rejected by this court,
Handy, 485 F. App’x at 680, Handy’s motion falls outside the scope of this court’s remand and
we therefore deny the motion.
                                             7
