     12-2020
     United States v. Dandeneau (Lee)



                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.



            At a stated term of the United States Court of Appeals for the Second Circuit,
     held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
     City of New York, on the 26th day of November, two thousand thirteen.

     PRESENT:
                 AMALYA L. KEARSE,
                 DENNIS JACOBS,
                 BARRINGTON D. PARKER,
                       Circuit Judges.
     _________________________________________

     UNITED STATES OF AMERICA,

                                 Appellee,

                       v.                                             12-2020


     CHRIS LEE, aka Chris Gayle,

                       Defendant - Appellant.
     _________________________________________

     FOR APPELLANT:                     Chris Lee, pro se, Fort Dix, NJ.

     FOR APPELLEE:                      Daniel A. Spector, Emily Berger, for Loretta E. Lynch,
                                        United States Attorney for the Eastern District of New York,
                                        Brooklyn, NY.
 1          Appeal from a judgment of the United States District Court for the Eastern District

 2   of New York (Townes, J.).

 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 4   AND DECREED that the judgment of the district court is AFFIRMED.

 5          Appellant Chris Lee, pro se, appeals from an amended judgment of the district

 6   court re-sentencing him to, inter alia, 235 months’ imprisonment. We previously vacated

 7   his sentence and remanded his case for re-sentencing on the basis that he was entitled to a

 8   third point reduction of his Guidelines offense level for acceptance of responsibility

 9   pursuant to United States Sentencing Guideline (“U.S.S.G.”) § 3E1.1(b). United States v.

10   Lee, 653 F.3d 170 (2d Cir. 2011) (“Lee I”). On remand, the district court duly granted

11   Appellant that reduction. We assume the parties’ familiarity with the underlying facts,

12   procedural history of the case, and issues on appeal.

13          We may “review sentences only for ‘reasonableness,’ a deferential standard limited

14   to identifying abuse of discretion.” United States v. Jones, 531 F.3d 163, 170 (2d

15   Cir.2008) (citation omitted).

16          Liberally construed, Appellant’s brief argues that the district court committed

17   procedural error when it (1) refused to permit him a new Fatico hearing before re-

18   sentencing, and (2) sentenced him to more than one year of imprisonment upon what he

19   characterizes as a jurisdictionally defective indictment. We reject both arguments.

20          When this Court overturns a sentence and remands for re-sentencing, but does not

21   vacate one or more of the underlying convictions, the presumption is that the remand is for

22   limited, not de novo, re-sentencing. See United States v. Malki, 718 F.3d 178, 182 (2d Cir.



                                                   2
 1   2013). On a remand for limited re-sentencing, the law of the case doctrine generally

 2   “forecloses re-litigation of all issues previously waived by the defendant or decided by the

 3   appellate court,” id. (citing United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002);

 4   Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010)), unless (1) those issues

 5   become relevant only after the initial appellate review, or (2) there is a “cogent or

 6   compelling reasons for resentencing de novo,” United States v. Hernandez, 604 F.3d 48, 54

 7   (2d Cir. 2010).

 8          This appeal is controlled by Malki, which ruled that its previous remand of a

 9   criminal matter for re-sentencing permitted only limited re-sentencing, because, as here (1)

10   the prior mandate “did not unequivocally identify whether” de novo re-sentencing was

11   contemplated; (2) only the sentence, and not the conviction, was vacated; (3) the “spirit of

12   the mandate” did not make clear that the Court intended de novo re-sentencing; (4) the

13   prior mandate identified a specific error to be corrected on remand; and (5) the prior

14   mandate rejected other arguments, which it need not have done had the remand been

15   intended to require de novo re-sentencing. See Malki, 718 F.3d at 182.

16          Appellant nevertheless seeks de novo re-sentencing–and a new and expanded

17   Fatico hearing–on the ground that he had withdrawn from the original Fatico hearing any

18   issue as to the quantity of marijuana attributable to him, hoping thereby to preserve his

19   eligibility for acceptance-of-responsibility points; and that became relevant only after this

20   Court’s mandate in Lee I. However, the quantity of marijuana was relevant to the

21   calculation of the original sentence; Lee had the opportunity–which he deliberately

22   bypassed–to have the Fatico hearing include that issue; and the quantity issue could have

23   been, but was not, raised on the appeal in Lee I. Instead, Lee challenged only the
                                                    3
 1   acceptance-of-responsibility adjustment, and this Court held that the district court should

 2   have granted his application for a third-point reduction pursuant to § 3E1.1(b)

 3   notwithstanding the Government’s refusal to move for a reduction, because the

 4   Government’s refusal was motivated by an erroneous interpretation of the Guidelines. See

 5   Lee I, 653 F.3d at 173. Because Appellant has not demonstrated that the issues he now

 6   seeks to appeal became relevant after this Court’s decision in Lee I, the district court’s

 7   denial of a Fatico hearing was proper.

 8          Appellant also argues that the indictment against him was defective because it

 9   failed to identify the substance he was convicted of conspiring to import and distribute; and

10   that the district court’s sentence was, therefore, procedurally unreasonable because, in the

11   face of this omission, it should not have sentenced him to more than one year of

12   imprisonment. His argument suffers several flaws. Lee has not shown that the indictment

13   suffered any jurisdictional defect, as the fact of the indictment charged him with federal

14   offenses, see generally United States v. Kumar, 617 F.3d 612, 620 (2d Cir. 2010), and a

15   plea of guilty “waive[s] any and all non-jurisdictional defects in an indictment.” United

16   States v. Maloney, 287 F.3d 236, 239 (2d Cir. 2002). In any event, there is no factual

17   predicate for his argument because each of the counts to which he pled guilty identified the

18   controlled substance involved. Furthermore, Appellant admitted at his plea allocution to

19   the fact that he had possessed, distributed, and imported cocaine. Accordingly, the district

20   court did not plainly err in imposing a sentence of greater than one year.

21

22


                                                    4
1          We have considered all of Lee’s contentions on this appeal and have found them to

2   be without merit. For the foregoing reasons, the judgment of the district court is hereby

3   AFFIRMED.

4                                                FOR THE COURT:
5                                                Catherine O’Hagan Wolfe, Clerk




                                                 5
