     Case: 18-60333      Document: 00515013881         Page: 1    Date Filed: 06/27/2019




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

                                                                                FILED
                                    No. 18-60333                            June 27, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

KENNETH E. FAIRLEY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 2:16-CR-3-1


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       In September 2016, a jury found Defendant-Appellant Kenneth E.
Fairley guilty of one count of conspiracy to commit theft of government funds
(Count One) and two counts of theft of government funds (Counts Two and
Three). The district court sentenced Fairley to concurrent terms of 36 months
imprisonment and 36 months supervised release plus a $30,000 fine and
$60,223.95 in restitution. On appeal, we vacated his convictions on Counts


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-60333       Document: 00515013881    Page: 2     Date Filed: 06/27/2019


                                  No. 18-60333

Two and Three, affirmed his conviction on Count One, affirmed the district
court’s evidentiary and sentencing rulings, and remanded for “the district court
to determine whether Fairley’s sentence should change in light of the vacated
convictions.” United States v. Fairley, 880 F.3d 198, 202 (5th Cir.), cert. denied,
139 S. Ct. 321 (2018).
      On remand, the district court denied Fairley’s request for a resentencing
hearing and preparation of an updated presentence report because the
underlying facts considered at sentencing remained the same, and the court
would have imposed the same sentence if it had considered Count One
separately from Counts Two and Three. The district court determined that the
only necessary modification to Fairley’s judgment was to reduce the mandatory
assessment fees from $300 to $100 to reflect the two vacated convictions.
      In this appeal, Fairley claims that the district court erred by refusing to
conduct a full resentencing hearing. He clarifies that he is not challenging the
outcome of the district court’s determination of his sentence on remand.
      We review de novo the district court’s application of a remand order and
its compliance with the law-of-the-case doctrine or mandate rule.            United
States v. Teel, 691 F.3d 578, 583 (5th Cir. 2012). We have “adopted a restrictive
rule for interpreting the scope of the mandate in the criminal sentencing
context.” United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004) (internal
quotation marks, citation, and brackets omitted).           “[O]nly those discrete,
particular issues identified by the appeals court for remand are properly before
the resentencing court.” Id. (internal quotation marks and citation omitted).
However, “once an issue is remanded for resentencing, all new matter relevant
to that issue appealed, reversed, and remanded, may be taken into
consideration by the resentencing court.” United States v. Marmolejo, 139 F.3d
528, 530 (5th Cir. 1998).



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                                No. 18-60333

      Although we did not specifically direct the district court to resentence
Fairley on remand, Fairley contends that our citation to, and parenthetical
quotation of, United States v. McRae, 795 F.3d 471, 483 (5th Cir. 2015), in a
footnote indicated our implied intent that the district court should conduct a
resentencing hearing. See Fairley, 880 F.3d at 202 & n.1. However, our
opinion in McRae did not specifically require a sentencing hearing on remand
in that case. See McRae, 795 F.3d at 473, 483-84.
      On remand, the district court complied with our explicit mandate in
Fairley. The court modified Fairley’s sentence rather than imposing a new
sentence, so Fairley is not entitled to a full resentencing hearing or any
procedural accompaniments. See United States v. Clark, 816 F.3d 350, 353-58
(5th Cir. 2016); United States v. Erwin, 277 F.3d 727, 728-29 (5th Cir. 2001).
      AFFIRMED.




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