                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                           June 15, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-3170
                                                 (D.C. No. 2:14-CR-20066-JAR-1)
EMANUEL GODINEZ-PEREZ,                                       (D. Kan.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, BALDOCK, and HARTZ, Circuit Judges.
                  _________________________________

      Defendant Emanuel Godinez-Perez appeals from a modified sentence.               In

United States v. Godinez-Perez (Godinez-Perez I), 864 F.3d 1060 (10th Cir. 2016),

we vacated Defendant’s original sentence and remanded for resentencing because the

district court erred in calculating his base offense level. At resentencing, the district

court reduced Defendant’s total offense level to accurately reflect Defendant’s

relevant conduct and exercised its discretion not to resolve two arguments Defendant

presented for the first time at resentencing. Defendant now appeals his modified

sentence, arguing the district court committed legal error or, in the alternative,

abused its discretion, when it did not rule on the two new arguments Defendant raised

      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
at resentencing.   Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a), we affirm.

                                          I.

      A grand jury in the United States District Court for the District of Kansas

charged Defendant and two co-defendants with conspiring to distribute and possess

with intent to distribute more than 500 grams of methamphetamine, in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count 1); distributing 50 grams or more

of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)

(Counts 2 and 3); and possessing with intent to distribute 50 grams or more of

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)

(Count 4). Defendant pleaded guilty to all counts of the indictment without a plea

agreement. The district court adopted the presentence investigation report (PSR) and

sentenced Defendant to 108 months’ imprisonment.

      Defendant appealed this original sentence, arguing the district court plainly

erred in not making particularized findings regarding relevant conduct attributable to

him. Specifically, he argued the PSR did not include information linking Defendant

to all of the quantities of methamphetamine that were seized during the investigation,

including 887.26 grams of methamphetamine seized from a storage unit. This Court

agreed, vacated Defendant’s sentence, and remanded for resentencing without

limiting the scope of the remand. Godinez-Perez I, 864 F.3d at 1071.

      At Defendant’s resentencing, the district court queried the parties regarding

the scope of its mandate on remand. Both parties agreed the scope of this Court’s

                                          2
remand was not limited. The Government requested the district court to limit the

scope of remand to the issue of relevant conduct—i.e., whether the 887.26 grams of

methamphetamine found in the storage unit was attributable to Defendant.

Defendant, on the other hand, requested the district court to consider all of his

arguments, including two new arguments in favor of a downward variance. The first

new argument was Defendant suffered an unwarranted sentence disparity compared

to other methamphetamine traffickers nationwide simply by virtue of being

prosecuted in Kansas. According to Defendant, Kansas City, Kansas probation

calculates methamphetamine as “Ice” at a rate significantly higher than the national

rate, which yielded a higher base offense level than he would likely face in another

jurisdiction. Defendant’s second new argument in favor of a downward variance was

his assigned Criminal History Category I overrepresents his culpability and risk of

recidivism. In support, Defendant proffered United States Sentencing Commission

recidivism reports from 2004 and 2017, which indicate defendants who are “true first

offenders” are less likely to recidivate than other defendants in Criminal History

Category I who have been convicted of prior crimes.2 Defendant contended he is a

“true first offender” and the district court should accordingly grant him a downward

variance to reflect Defendant’s lower likelihood to recidivate compared to other

defendants in Category I.


      2
        Defendant defines a “true first offender” as “a defendant who has had no
previous contact with law enforcement or the judicial system.” Def. Op. Br. at 7 n.2
(quoting United States v. Wyrick, 416 F. App’x 786, 787 n.1 (10th Cir. 2011)
(unpublished)).
                                         3
      The district court addressed all three of Defendant’s arguments. First, the

court addressed the relevant-conduct error this Court identified in Godinez-Perez I.

This time, the court declined to attribute to Defendant the 887.26 grams of

methamphetamine found in the storage unit. Accordingly, Defendant’s total offense

level decreased from 31 to 29.       Because Defendant only qualified for Criminal

History Category I, the offense level decrease resulted in an advisory Guidelines

range of 87 to 108 months’ imprisonment. The district court announced its tentative

sentence of 87 months’ imprisonment to be followed by two years of supervised

release. Second, the district court exercised its discretion not to resolve Defendant’s

request for a variance based on a national “Ice” disparity. Third, the district court

exercised its discretion not to resolve Defendant’s request for a variance based on his

“true first offender” argument.

      Defendant now appeals his modified sentence arguing the district court

committed legal error or, in the alternative, abused its discretion, when it did not rule

on the national “Ice” disparity and “true first offender” arguments.

                                           II.

      Defendant argues it was error for the district court to limit the scope of the

remand by declining to decide the two new arguments. The Government argues the

district court did not err because district courts have discretion, but are not mandated,

to consider new arguments and evidence at resentencing. Under the “mandate rule,”

“where the appellate court has not specifically limited the scope of the remand, the

district court generally has discretion to expand the resentencing beyond the

                                           4
sentencing error causing the reversal.” United States v. Moore, 83 F.3d 1231, 1234

(10th Cir. 1996). Our precedent is clear: “[a] district court may (not must) expand

the scope of resentencing absent an express limitation.” United States v. West, 646

F.3d 745, 749 (10th Cir. 2011).

      Given a district court has discretion to expand (or not) the scope of

resentencing absent an express limitation, Defendant’s claim fails on the merits. At

resentencing, both parties agreed the Tenth Circuit did not limit the scope of the

remand. Defendant stated, “I agree with [the Government] that the Tenth Circuit

Court of Appeals did not limit in its mandate to this Court what it can consider in

resentencing [Defendant].” ROA Vol. II at 15. In West, we held district courts have

discretion to determine the scope of resentencing when an appellate court did not

limit the scope of the remand. West, 646 F.3d at 749. In light of West, the district

court did, indeed, have discretion to limit the scope of the remand. The district court,

therefore, did not err as a matter of law in limiting the scope of the remand when it

exercised discretion to not resolve Defendant’s new arguments for a downward

variance.3

                                          III.

      We next turn to Defendant’s alternative argument that the district court abused

its discretion in declining to decide Defendant’s national “Ice” disparity and “true

first offender” arguments. As explained above, the district court did indeed have

      3
        The Government also argues Defendant waived or forfeited this issue. We
need not address waiver or forfeiture because the resolution of either is
inconsequential given we find no error.
                                           5
discretion on whether it would hear issues not previously presented.       See supra

Part II. “Thus, a court’s decision to limit the scope of re-sentencing is reviewed for

abuse of discretion.” United States v. Burns, 622 F. App’x 761, 762 (10th Cir. 2015)

(unpublished) (discussing West, 646 F.3d at 749).        A district court abuses its

discretion when it “relies on an incorrect conclusion of law or a clearly erroneous

finding of fact,” or when it makes a choice that is “arbitrary, capricious, whimsical,

or manifestly unreasonable.” United States v. Battle, 706 F.3d 1313, 1317 (10th Cir.

2013); United States v. DeRusse, 859 F.3d 1232, 1236 (10th Cir. 2017).

                                         A.

      Defendant argues the district court abused its discretion in refusing to rule on

his national “Ice” disparity argument for a downward variance. The district court

allowed Defendant to put on evidence, considered the parties’ arguments, and

exercised its discretion not to resolve Defendant’s request for a variance. To argue

for a mitigating sentence adjustment, Defendant bears the burden of proving he is

entitled to such an adjustment. United States v. Williams, 374 F.3d 941, 947 (10th

Cir. 2004) (quoting United States v. Kirk, 894 F.2d 1162, 1164 (10th Cir. 1990)).

      Defendant’s national “Ice” disparity argument is rooted in the Sentencing

Guidelines Drug Quantity Tables, which recommend a higher base offense level for

higher purity methamphetamine. See U.S. Sentencing Guidelines Manual § 2D1.1

(U.S. Sentencing Comm’n 2015). The Guidelines classify methamphetamine into

three possible categories: (1) controlled-substance mixture (disregarding purity or

purity unknown); (2) actual methamphetamine (purity known, counting only the pure

                                          6
substance); or (3) “Ice” (a mixture or substance of at least 80% purity, in which case

the entire mixture is counted). See id.; ROA Vol. I at 104 n.19. Defendant claims

Drug Enforcement Agency reports and the Commission’s data files show a

significant disparity across judicial districts in the treatment of methamphetamine as

a mixture, actual, or “Ice” methamphetamine. Specifically, he points to evidence that

in 2015, 73% of defendants prosecuted for methamphetamine-related charges in the

District of Kansas were sentenced for “Ice,” whereas only 10% of defendants

prosecuted nationwide were sentenced for “Ice” during the same year. Def. Op. Br.

at 8–9. Defendant argues such disparity violates 18 U.S.C. § 3553(a)(6), which

requires district courts to consider “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of

similar conduct.”

      At resentencing, the court acknowledged it had discretion and exercised its

discretion not to resolve Defendant’s disparity argument. The court stated, “The

Court exercises its discretion to not entertain the bases for the request for variance on

the basis of a nationwide disparity and on the basis of first time . . . offender.” ROA

Vol. II at 70. The court further explained, “although the defendant has submitted a

number of statistics . . . , there are some key questions that would remain unanswered

on this record as to how the Court is to go about analyzing that data, such as are there

any warranted disparities? To the extent there is disparity, is it unwarranted . . .[?]”

Id. at 71. The district court pointed out several inadequacies in the data provided by

Defendant, identified multiple scenarios in which “Ice” disparities would be

                                           7
warranted, and therefore exercised its discretion not to resolve Defendant’s request

for a variance. Id. at 71–72 (explaining, for example, prosecutorial priorities may

warrant disparities among districts).

       Given Defendant had the burden of proof for sentence decreases and the

district court had discretion to limit the scope of the remand, the district court was

neither arbitrary nor manifestly unreasonable in exercising its discretion not to

resolve the national “Ice” disparity because Defendant failed to adduce sufficient

evidence that any alleged sentence disparity was unwarranted. The district court

raised numerous examples of circumstances that would create warranted disparities

including prosecutorial priorities focused on methamphetamine trafficking to the

exclusion of other drugs. The court did not, as Defendant argues, refuse to rule on

his arguments for a variance.     The court, instead, properly heard the arguments,

considered the data, and found the record left too many questions to decide the issue.

Accordingly, the district court did not abuse its discretion when it exercised its

discretion not to resolve Defendant’s request for a variance based on a national “Ice”

disparity.4




       4
          Even if there were error, any error was harmless because the record leaves no
doubt that the district court would have denied the request because Defendant failed
to meet his burden to show that any disparity was unwarranted, as required under 18
U.S.C. § 3553(a)(6). ROA Vol. II at 77 (“And I . . . want to point out that it’s not
disparity, it’s unwarranted disparity is the standard. And merely providing data that
there . . . is disparity does not answer the question whether the disparity is warranted
or not.”).
                                           8
                                           B.

      Defendant also contends the district court abused its discretion in refusing to

rule on his “true first offender” argument at resentencing. According to Defendant,

the district court’s refusal to rule on the issue was manifestly unreasonable because

its reasoning “[did] not stand up to legal or factual scrutiny.” Def. Op. Br. at 34.

      At resentencing, Defendant argued a downward variance based on his status as

a “true first offender” was appropriate because he was less likely to recidivate than

other defendants classified in Criminal History Category I. To support his argument,

Defendant proffered evidence of his lack of prior criminal convictions, a May 2004

Commission Recidivism Study, and a May 2017 Commission Study.5 The district

court considered the sentencing guidelines, all statements and submissions of the

parties, the second amended PSR, Defendant’s allocution, and Defendant’s history

and characteristics. Then the district court explained,

      I exercise my discretion not to entertain the argument for a variance on
      the basis of a true first offender. As the [G]overnment posited, the
      Sentencing Commission has not adopted this report and it’s a very old
      report. Again, on the basis of this record and the fact that it has only
      been raised now post-remand for resentencing, I exercise my discretion
      not to try to dive into this data. It strikes me also that on this record I
      would not have a complete picture anyway to make a truly informed
      decision about that.




      5
         The May 2004 United States Sentencing Commission study found defendants
with no previous contact with law enforcement or the judicial system—so-called
“true first offenders”—have lower recidivism rates than other defendants in Criminal
History Category I with prior arrests or convictions. See U.S. Sentencing Comm’n,
Recidivism and the “First Offender” (May 2004) at 13.
                                            9
ROA Vol. II at 72. Defendant argues the district court’s factual finding that the

Commission’s recidivism data was “old” and that “it hasn’t adopted a more recent

report” was “simply wrong” and rendered its refusal to rule on the argument an abuse

of discretion. Def. Op. Br. at 35.

      Given again that Defendant had the burden of proof for sentence decreases and

the district court had discretion to limit the scope of the remand, the district court was

neither arbitrary nor manifestly unreasonable in exercising its discretion not to

resolve the “true first offender” argument because Defendant failed to adduce

sufficient evidence that he qualified as a “true first offender.” For instance, the

Government raised two potentially disqualifying facts about Defendant’s history.

First, the Government questioned whether Defendant’s unlawful presence in the

United States as an undocumented alien disqualifies Defendant. ROA Vol. II at 58.

Second, an August 2014 arrest for “Alien Inadmissibility” mentioned in the Second

Amended PSR indicates Defendant did have previous contact with law enforcement.

ROA Vol. III at 62.       By Defendant’s own definition, a prior arrest would be

disqualifying. On this record, it remains an open question whether Defendant would

qualify as a “true first offender.” The district court correctly determined the record

did not provide a clear picture whether Defendant qualified as a “true first offender”

or whether the Commission considered recidivism rates for undocumented aliens in

analyzing recidivism data. Accordingly, the district court acted within its discretion

when it exercised its discretion not to resolve Defendant’s “true first offender”

argument.

                                           10
                                         C.

      Defendant also claims the district court abused its discretion in refusing to

vary downward based on evidence of his post-conviction conduct, including

Defendant’s participation in educational classes while in custody.         Defendant

contends the district court abused its discretion when it explained it would not

consider the argument because it was only raised post-remand.           According to

Defendant, not ruling on the argument because it was only raised post-remand

violates the holding in Pepper v. United States, which held a district court may

consider evidence of post-conviction conduct at resentencing.      Pepper v. United

States, 562 U.S. 476, 481 (2011).

      According to the Government, Defendant waived this Pepper argument

because he did not raise the post-conviction conduct argument at the resentencing

hearing.   Defendant contends he did raise the argument because it was “clearly

linked” to his “true first offender” argument. Def. Rep. Br. at 12. “We typically find

waiver . . . where a party attempts to reassert an argument that it previously raised

and abandoned below.” United States v. Zubia-Torres, 550 F.3d 1202, 1205 (10th

Cir. 2008).   The record indicates Defendant raised his post-conviction conduct

argument very briefly in his sentencing memorandum and again at resentencing.

ROA Vol. I at 122–23; ROA Vol. II at 19–20. Notably, Defendant did not tie the

post-conviction conduct argument to the “true first offender” argument in his

sentencing memorandum and, instead, described it as “another reason to vary

downward.” ROA Vol. I at 123. Additionally, Defendant’s post-conviction conduct

                                         11
discussion at resentencing was undeveloped and made no mention of his status as a

“true first offender.” Then, when the district court specifically asked whether there

were any other arguments (in addition to the intra-case disparity, national disparity,

and “true first offender”), Defendant abandoned the post-conviction conduct

argument when he responded in the negative. ROA Vol. II at 20–21.

      Defendant now attempts to combine the two arguments to avoid waiver,

despite his explanations below that his behavior while in custody was merely

“consistent” with his alleged “true first offender” status and “another reason to vary

downward.” ROA Vol. I at 123. This Court is not persuaded the “true first offender”

argument subsumes the issue of post-sentencing conduct because “true first offender”

status relates to pre-arrest conduct, whereas post-conviction conduct necessarily

relates to post-arrest conduct. That Defendant’s conduct in custody is consistent with

a “true first offender” is not sufficient to preserve the post-conviction conduct

argument given Defendant’s unequivocal response that he had no further issues.

Defendant, therefore, waived appellate review of his post-conviction conduct

argument.6




      6
         Even if we were convinced the post-conviction conduct and “true first
offender” arguments were sufficiently linked to constitute a single issue, Defendant’s
argument would be unavailing. The district court allowed Defendant to put on
evidence of his rehabilitation and the district court considered it. Based on the
record, Plaintiff failed to meet his burden to show he qualified for “true first
offender” status. Accordingly, it was not an abuse of discretion to exercise its
discretion not to resolve the “true first offender” argument because the record did not
provide a complete picture for the district court. See discussion supra Part III.B.
                                          12
                                            IV.

      Accordingly, the district court acted within its discretion when it exercised its

discretion not to resolve such arguments.

      AFFIRMED.

                                             Entered for the Court



                                             Bobby R. Baldock
                                             Circuit Judge




                                            13
