United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 19, 2012                Decided March 12, 2013

                         No. 11-3049

                UNITED STATES OF AMERICA,
                        APPELLEE

                               v.

     JOSEPH L. BLACKSON, ALSO KNOWN AS JOE BLACK,
                      APPELLANT


                  Consolidated with 11-3063


        Appeals from the United States District Court
                 for the District of Columbia
                (No. 1:04-cr-00128-RMC-3)


    Richard K. Gilbert, appointed by the court, argued the cause
and filed the briefs for appellant.

    Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for appellee. Ronald C. Machen Jr., U.S. Attorney, and
Roy W. McLeese III, John P. Dominguez, and Katherine M.
Kelly, Assistant U.S. Attorneys, were on the brief for appellee.
Elizabeth Trosman, Assistant U.S. Attorney, entered an
appearance.
                               2

   Before: GARLAND, Chief Judge, BROWN, Circuit Judge, and
EDWARDS, Senior Circuit Judge.

    Opinion for the Court filed by Chief Judge GARLAND.

     GARLAND, Chief Judge: Joseph Blackson challenges the
district court’s decision to reimpose a 360-month sentence for
numerous narcotics- and firearms-related convictions after this
court vacated one of the convictions upon which his original
sentence was based. Blackson argues that the district court took
an overly narrow view of the scope of issues it could consider at
his resentencing. Because we find that the district court
correctly understood its authority on remand, we uphold
Blackson’s sentence. We also take the opportunity to collect
and restate this circuit’s rules regarding which arguments the
district court may consider on a remand for resentencing when
the remand order provides no express instructions.

                                I

     In March 2004, Blackson and thirty-eight others were
arrested for their participation in the “M Street Crew,” a drug
ring operating in Northeast Washington, D.C. The government
brought federal criminal charges against nineteen participants,
including Blackson. Blackson and four other members of the
Crew were tried together.         Following the trial, the jury
convicted Blackson on one count of conspiracy to distribute and
possess with intent to distribute narcotics, one count of
conspiracy to participate in a racketeer influenced corrupt
organization, eleven counts of distributing phencyclidine (PCP),
two counts of possessing with intent to distribute the drug
“ecstasy,” and two firearms-related offenses. The jury did not
find Blackson guilty of one additional count of PCP distribution
(Count 31), which the government conceded it had failed to
                               3

prove. In fact, Count 31 did not even appear on the verdict form
submitted to the jury. Nonetheless, in what the government later
acknowledged was a clerical error, Blackson’s district court
judgment showed that he had been convicted on Count 31.

     Following the jury verdict, the district court sentenced
Blackson to concurrent 360-month terms of incarceration for all
of the counts relevant here, including Count 31. The sentence
included an enhancement for playing a managerial role in the
drug ring, pursuant to United States Sentencing Guideline
§ 3B1.1(b).

     Blackson and his co-defendants appealed their convictions
and sentences to a panel of this court. See United States v.
Wilson, 605 F.3d 985, 1002-03 (D.C. Cir. 2010). Blackson
raised two challenges relevant to this case. First, Blackson
asked the court to find that the district court had abused its
discretion by applying the managerial role enhancement. This
court found, however, that the district court “had a sufficient
basis to conclude that Blackson was a manager/supervisor” in
the M Street Crew, although some evidence adduced at trial
“might have tended to show that Blackson was at the bottom
level of the conspiracy.” Id. at 1039.

     Blackson had more success with his second challenge,
which was to the inclusion of Count 31 in the district court’s
judgment. This court found that the judgment erroneously listed
Count 31 as a conviction and that the error affected Blackson’s
substantial rights because it “may have affected [his] sentence.”
Id. at 1032. The court “therefore reverse[d] Blackson’s
conviction on Count 31 and remand[ed] for resentencing.” Id.
Because the language of the panel’s remand order is relevant to
this case, we quote it here in full:
                                4

         For the foregoing reasons, except for Blackson’s
         judgment as to Count 31, we affirm the district court’s
         judgments. We vacate Blackson’s judgment on Count
         31 and remand to the district court for further
         proceedings consistent with this opinion.

Id. at 1039.

      At Blackson’s resentencing hearing, the defendant and the
government presented the district court with contrary views
regarding the scope of issues the court could consider on
resentencing. Citing Sixth Circuit cases authorizing de novo
resentencing after remand, Blackson urged the court to weigh
anew all of the sentencing factors listed in 18 U.S.C. § 3553(a).
Def.’s Mem. in Aid of Resentencing at 2 (J.A. 37) (citing United
States v. Helton, 349 F.3d 295, 299 (6th Cir. 2003); United
States v. Moore, 131 F.3d 595, 598 (6th Cir. 1997)).
Specifically, Blackson asked the district court to reconsider the
managerial role enhancement that this court had sustained. He
also asked for a downward variance from the Sentencing
Guidelines for his willingness to testify for the defense at the
trial of his former associate, Larry Gooch, which took place after
his own initial sentencing. The government disputed both the
defendant’s general characterization of the district court’s
remand authority as “de novo” and the specific contention that
the district court had authority to reconsider the enhancement
and consider the testimony. See Resentencing Hr’g Tr. at 12-13
(May 6, 2011). In the government’s view, the remand was
“ministerial,” id. at 10, meaning that the trial court was only
authorized to decide what Count 31 “meant in the entire
sentencing scheme” and “what the sentence would have been if
                                   5

the trial court had [realized] that Count 31 was not a Count of
conviction,” id. at 11.1

     After listening to each side’s arguments at the resentencing
hearing, the district judge said that she “really wanted to
reconsider this in full,” id. at 16, notwithstanding that the
original 360-month sentence “was formulated specifically with
Mr. Blackson in mind,” id. at 15. But after considering “what
I had the flexibility to do and then what I thought I should do if
I had the flexibility,” id. at 16, the judge concluded:

          [G]iven the number of counts and the complexity of
          this all with the multiple defendants and the multiple
          counts and everything, the Circuit did not want to
          presume how this Count improperly included in the
          judgment might have influenced the judgment and
          without it might some way fall and so they sent it back
          for that purpose alone . . . . to that extent I accept the
          ministerial point made by the Government.

Id. at 17. Regarding Blackson’s managerial role enhancement,
the judge said that, “even if I wanted to reconsider it[,] I don’t
think I can.” Id. at 18. Finally, as to Blackson’s testimony at
the Gooch trial, the court found:

          I don’t even have to go there to find that the testimony
          whether admirable, honorable or . . . perjurious,


     1
       The government’s sentencing memorandum also suggested that,
if the district court did consider Blackson’s role in the Gooch trial, it
should impose an “upwards departure for the perjury he committed
while testifying on behalf of his M Street Crew member.” Gov’t
Reply to Def.’s Mem. for De Novo Resentencing at 3 (J.A. 48).
                                  6

             whatever it was, I don’t think it has an impact on how
             I should consider sentencing for the crimes for which
             Mr. Blackson was convicted beyond a reasonable
             doubt by a jury after hearing months and months of
             evidence.

Id. at 19.

     Thereafter, the district court reimposed the original 360-
month sentence, reasoning that vacated Count 31 “really was
just an additional Count but it carried no independent weight as
to the sentences.” Id.; see also Am. Judgment at 3 (J.A. 27).
Blackson now appeals, contending that the district court took an
overly narrow view of the scope of issues it could consider on
remand.

                                  II

    We begin by collecting in one place this circuit’s rules
regarding the scope of a district court’s resentencing authority
under a remand order that, like the order in this case, contains no
express instructions regarding which issues the district court
may consider.

    First, as we said in United States v. Lyons and reaffirmed in
United States v. Whren, when this court vacates one count of a
multi-count conviction, the district court on remand should
begin by determining whether that count affected the overall
sentence and, if so, should reconsider the original sentence it
imposed. Lyons, 706 F.2d 321, 335 n.25 (D.C. Cir. 1983);
Whren, 111 F.3d 956, 958 (D.C. Cir. 1997). Second, under
Whren, the district court may also consider “such new
arguments or new facts as are made newly relevant by the court
of appeals’ decision -- whether by the reasoning or by the
                                    7

result.” 111 F.3d at 960. Third, the district court is further
authorized to consider facts that did not exist at the time of the
original sentencing: for example, in United States v. Rhodes we
held that the district court could consider rehabilitation efforts
that the defendant had undertaken since receiving his original
sentence. 145 F.3d 1375, 1377-78 (D.C. Cir. 1998); see also
Whren, 111 F.3d at 960 (“A defendant should not be held to
have waived an issue if he did not have a reason to raise it at his
original sentencing.”).

     Beyond these three categories of inquiry, however, the
district court does not generally have authority to consider other
objections at resentencing -- unless the remanding court has
expressly directed otherwise. See Whren, 111 F.3d at 958-60.2
Accordingly, unlike the rule in some circuits, in this circuit the
district court generally does not have authority to resentence a
defendant de novo. Id. at 959-60 (rejecting the de novo
approach to resentencing followed by several other circuits,
including the Sixth).




     2
       Whren recognized one important caveat: “under Federal Rule
of Criminal Procedure 52(b) the resentencing court may consider even
an issue raised belatedly” if it constitutes plain error. 111 F.3d at 960.
Since Whren, we have also held that the resentencing court may
consider arguments not raised at the original sentencing when the
argument’s relevance to the sentence was contingent on a
circumstance that did not materialize at the original sentencing but that
did come to pass by the time resentencing occurred, and where the
defendant establishes good cause for not having raised the argument
sooner. United States v. McCoy, 313 F.3d 561, 561-62 (D.C. Cir.
2002) (en banc). Neither of these circumstances is presented in this
case.
                                8

     Blackson maintains that our decision in Whren is “of
questionable validity” after the Supreme Court’s subsequent
decision in Pepper v. United States, 131 S. Ct. 1229 (2011), and
that district courts may now undertake de novo reconsideration
upon almost all sentencing remands. Appellant’s Br. at 22; see
Oral Arg. Recording at 4:27 - 4:45. We disagree.

     Pepper stands for several propositions, none of which
conflict with our circuit’s caselaw. In Pepper, the Court held
that, “when a defendant’s sentence has been set aside on appeal,
a district court at resentencing may consider evidence of the
defendant’s postsentencing rehabilitation.” 131 S. Ct. at 1236.
This holding should sound familiar because, as noted above, we
reached the same conclusion thirteen years earlier in Rhodes.
See 145 F.3d at 1377-78. Although only dicta, language in
Pepper suggests that the resentencing court’s authority extends
not only to evidence of post-sentencing rehabilitation, but also
to evidence of other “conduct since [the] initial sentencing.”
131 S. Ct. at 1242; see id. at 1246-47, 1249. As the Court
explained, such post-sentencing conduct “constitutes a critical
part of the ‘history and characteristics’ of a defendant that
Congress intended sentencing courts to consider.” Id. at 1242
(quoting 18 U.S.C. § 3553(a)); see id. at 1246-47 (“[W]e see no
general congressional policy . . . to preclude resentencing courts
from considering postsentencing information”). We draw the
same lesson from Rhodes, see infra Part III.3, and therefore find
only support in Pepper on this point as well.

     Pepper also made clear that the Supreme Court’s instruction
to district courts in United States v. Booker -- that they should
“treat the [Sentencing] Guidelines as ‘effectively advisory,’”
131 S. Ct. at 1241 (quoting Booker, 543 U.S. 220, 245 (2005)) --
extends to sentencing remands as well. Id. at 1243-46.
Accordingly, the Court held that evidence of post-sentencing
                                 9

rehabilitation “may, in appropriate cases, support a downward
variance from the now-advisory Federal Sentencing Guidelines
range.” Id. at 1236. Nothing in this circuit’s caselaw is to the
contrary.

     Finally, Pepper held that, “because the Court of Appeals [in
that case had] remanded for de novo resentencing,” the district
court “was not bound by the law of the case doctrine to apply
the same . . . percent departure [from the Guidelines] that had
been applied at [the defendant’s] prior sentencing.” Id. at 1251.
Contrary to Blackson’s suggestion, this holding does not mean
that the district court in his case was authorized to reconsider his
managerial enhancement notwithstanding that it did not involve
a “new argument[] or new fact[] . . . made newly relevant by
[our] decision” on his first appeal, as Whren requires. 111 F.3d
at 960. This is so for the obvious reason that, unlike the Court
of Appeals in Pepper, we did not remand for de novo
resentencing.

       To be sure, Pepper did note that “[a] criminal sentence is a
package of sanctions that the district court utilizes to effectuate
its sentencing intent.” 131 S. Ct. at 1251 (internal quotation
marks omitted). Hence, “[b]ecause a district court's original
sentencing intent may be undermined by altering one portion of
the calculus, an appellate court when reversing one part of a
defendant's sentence may vacate the entire sentence . . . so that,
on remand, the trial court can reconfigure the sentencing plan
. . . to satisfy the sentencing factors in 18 U.S.C. §3553(a).” Id.
(internal quotation marks and citations omitted) (emphasis
added). But this circuit accomplishes that end by permitting the
district court to reconsider whether its “sentence on a valid
conviction was influenced by a conviction on a separate count
that is later overturned on appeal,” not by permitting it to
reconsider issues that were not “in any way related to this court's
                                   10

vacatur of the [separate] count.” Whren, 111 F.3d at 958
(internal quotation marks omitted). Nothing precludes an
appellate court from limiting the scope of its remands in this
way.3 To the contrary, Pepper stated that it did not “mean to
preclude courts of appeals from issuing limited remand orders,
in appropriate cases, that may [even] render evidence of
postsentencing rehabilitation irrelevant in light of the narrow
purposes of the remand proceeding.” 131 S. Ct. at 1249 n.17
(citing United States v. Bernardo Sanchez, 569 F.3d 995, 1000
(9th Cir. 2009)).4

     In sum, Pepper does nothing to undermine this circuit’s
general resentencing rules. Accordingly, in the absence of
specific remand instructions, the general rules set forth in Lyons,
Whren, and Rhodes continue to define the scope of a district
court’s authority on remand. We now consider whether the
district court properly applied those rules in this case.




     3
        See 18 U.S.C. § 3742(f)(1) (“If the court of appeals determines
that . . . the sentence was imposed in violation of law[,] . . . the court
shall remand the case for further sentencing proceedings with such
instructions as the court considers appropriate”) (emphasis added);
id. at 3742(g) (“A district court to which a case is remanded pursuant
to subsection (f)(1) . . . shall resentence a defendant in accordance
with section 3553 and with such instructions as may be given by the
court of appeals . . . .”) (emphasis added).
     4
       In Bernardo Sanchez, the Ninth Circuit held that, when it
ordered a remand limited to the question of whether the district court
would have imposed the same sentence had it known Booker would
render the Sentencing Guidelines advisory, the district court was not
authorized to consider post-sentencing information. 569 F.3d at 1000.
                                 11

                                 III

    For the following reasons, we conclude that the district
court did correctly understand and follow this circuit’s law at
Blackson’s resentencing.

     1. This court’s remand order in Blackson’s first appeal was
consistent with our general rule that, upon remand from an
appellate decision overturning one of multiple separate
convictions, the district court should examine the sentence it
imposed to determine whether it was influenced by the vacated
count. Lyons, 706 F.2d at 335 n.25. In Blackson’s first appeal,
we held that the judgment erroneously listed a conviction on
Count 31 and that this error affected the defendant’s substantial
rights because it “may have affected Blackson’s sentence.”
Wilson, 605 F.3d at 1032. We “therefore reverse[d] Blackson’s
conviction on Count 31 and remand[ed] for resentencing.” Id.
(emphasis added). If we had not expected the district court on
remand to consider whether and how Count 31 affected the
original sentence, there would have been no need to remand for
resentencing at all; we could simply have directed the court to
vacate the count without touching the sentence. Instead, we
“vacate[d] Blackson’s judgment on Count 31 and remand[ed] to
the district court for further proceedings consistent with this
opinion.” Id. at 1039 (emphasis added). Moreover, if the
district court had merely reimposed the original sentence
without considering the effect of Count 31, we would be back
where we started: we would have no way of knowing whether
the erroneous conviction actually affected Blackson’s sentence,
and hence no way of knowing whether his substantial rights had
been violated.

     Blackson maintains that the district court did not understand
that its authority extended at least this far, but rather thought that
                                12

it could do no more than vacate Count 31 and its associated
sentence. That is incorrect. Although the court “accept[ed] the
ministerial point” advanced by the government, it did so “to
th[e] extent” that it recognized it should not only vacate Count
31 but also consider whether that count “might have influenced”
the overall sentence. Resentencing Hr’g Tr. at 17. The court
then properly proceeded to evaluate whether Count 31 affected
the overall sentence. Unfortunately for Blackson, the court
concluded that it “really was just an additional Count” that
“carried no independent weight.” Id. at 19.

     2. The district court also properly understood that it should
not reconsider its original decision to give a Sentencing
Guidelines enhancement for Blackson’s managerial role in the
M Street Crew. See Resentencing Hr’g Tr. at 18 (“I think that
has been sustained on appeal. . . . I agree . . . that even if I
wanted to reconsider it[,] I don’t think I can.”). On Blackson’s
first appeal, this court affirmed the district court’s original
decision that the enhancement was warranted. Wilson, 605 F.3d
at 1038-39. We vacated the erroneous conviction on Count 31,
however, and we remanded for resentencing because we could
not determine whether the conviction on that count affected
Blackson’s overall sentence. Id. at 1032. In that context, our
instruction that the case be “remand[ed] to the district court for
further proceedings consistent with this opinion,” id. at 1039
(emphasis added), cannot be read as specifically authorizing
reconsideration of the enhancement that we had just affirmed --
let alone as authorizing an entirely de novo resentencing as
Blackson insists.

     As we have said, in the absence of more specific remand
instructions, the general rules for resentencing set forth in Lyons,
Whren, and Rhodes apply. Blackson’s managerial role
enhancement does not fall within any of them. He has not
                               13

suggested any way in which that particular sentencing
enhancement could have been influenced by his overturned
conviction on Count 31. See Whren, 111 F.3d at 958; Lyons,
706 F.2d at 335 n.25. Nor has he raised any other “new
arguments or new facts . . . made newly relevant” by our
decision on the first appeal. Whren, 111 F.3d at 960. Nor has
he proffered any facts relevant to the enhancement that did not
exist at the time of his original sentencing. See Rhodes, 145
F.3d at 1377-78. Moreover, Blackson’s initial sentencing was
conducted after Booker rendered the Guidelines advisory, and
there is no indication (and no suggestion) that the district court
failed to understand that point at either the sentencing or the
resentencing. The court was therefore correct not to reopen the
question of Blackson’s managerial role. See Whren, 111 F.3d at
958-60.

     3. Finally, and contrary to the government’s argument on
appeal, the district court was authorized to entertain Blackson’s
request to consider the fact that he voluntarily testified at
Gooch’s trial, which took place after Blackson’s initial
sentencing. Rhodes expressly permits a resentencing court to
consider arguments based on facts that did not exist at the time
of the initial sentencing. 145 F.3d at 1377-78 (rejecting the
view that “Whren limits resentencing to facts existing at the time
of original sentencing.”). And there is no reason to distinguish
new facts related to post-sentencing testimony from the new
facts related to post-sentencing rehabilitation that were at issue
in Rhodes. As noted above, at least in dicta Pepper also treats
the two as the same.

     The government contends that Rhodes is different from this
case because the remand instruction in Rhodes invited the
district court to consider a broader range of topics on
resentencing. That is not correct. In the first Rhodes appeal, a
                               14

panel of this court reversed one of the defendant’s three
convictions and remanded for possible resentencing “taking into
account the provisions of [Sentencing Guideline]
§ 2D1.1(b)(1),” which provides a sentencing enhancement if the
defendant possessed a dangerous weapon. United States v.
Rhodes, 106 F.3d 429, 433 (D.C. Cir. 1997). Notwithstanding
that this language did not, by itself, invite consideration of the
defendant’s post-sentencing behavior, we held in the second
Rhodes appeal that the district court was authorized to consider
rehabilitation efforts undertaken by the defendant since
receiving his initial sentence. 145 F.3d at 1377-78. There is no
relevant difference between the Rhodes remand order, which
directed that resentencing take into account one specific
Guidelines enhancement, and the remand order in this case,
which directed that resentencing take into account the effect that
vacated Count 31 may have had on the original sentence. We
therefore reject the government’s contention that the remand
order in this case renders the Rhodes rule inapplicable.

     Nonetheless, although the government misunderstands
Rhodes, the district court did not. The record shows that, at
resentencing, the court did consider whether Blackson’s
willingness to testify for the defense at the subsequent trial of
his friend should affect Blackson’s own sentence. But -- again,
unfortunately for Blackson -- the judge concluded that she “d[id
not] think it has an impact on how I should consider sentencing
for the crimes for which Mr. Blackson was convicted beyond a
reasonable doubt by a jury after hearing months and months of
evidence.” Resentencing Hr’g Tr. at 19.

    This conclusion was well within the district court’s
sentencing discretion. At oral argument on this appeal,
Blackson suggested that we should demand a clearer statement
from the district court that it knew it had authority to consider
                               15

his willingness to testify at the Gooch trial as part of his
resentencing. But Rhodes indicated that a resentencing court
may consider new facts that arise after a defendant’s original
sentencing, a point that Pepper underlined just two months
before Blackson’s resentencing. And the district court did
consider such facts with respect to the Gooch testimony.
Nothing more is required to demonstrate that the court
understood the scope of its authority.

                               IV

     Because the district court neither misunderstood its
authority nor erred in exercising that authority, the judgment of
the district court is

                                                       Affirmed.
