                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0785n.06
                            Filed: October 20, 2006

                                           No. 05-5889

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )      ON APPEAL FROM THE UNITED
v.                                                   )      STATES DISTRICT COURT FOR
                                                     )      THE MIDDLE DISTRICT OF
KEEDA HAYNES,                                        )      TENNESSEE
                                                     )
                                                     )      OPINION
       Defendant-Appellant.                          )




Before: ROGERS and GRIFFIN, Circuit Judges; HOOD, Chief District Judge.*

       HOOD, Chief District Judge.             This appeal arises from the resentencing of

Defendant/Appellant Keeda Haynes (“the defendant”). The defendant argues her conviction should

be overturned, or in the alternative, her sentence should be vacated and remanded for resentencing.

For the reasons stated below, we AFFIRM both the defendant’s conviction and resentencing.

                    I. FACTUAL AND PROCEDURAL BACKGROUND

       This case has a protracted past, the procedural aspects of which are most pertinent to this

appeal. A thorough rendition of the facts was presented by this Court in U.S. v. Haynes, 98 Fed.

Appx. 499 (6th Cir. 2004) (“Haynes I”) and need not be restated in full here. On December 6, 2001,



       *
        The Honorable Joseph M. Hood, Chief United States District Judge for the Eastern District
of Kentucky, sitting by designation.
No. 05-5889
United States v. Haynes

a Superseding Indictment charged the defendant with, amongst other charges, Aiding and Abetting

a Conspiracy to Distribute more than one hundred (100) kilograms of marijuana in violation of 18

U.S.C. § 2. Following a six day trial which began on April 30, 2002, the district court gave the jury

the Sixth Circuit Pattern Jury Instructions for aiding and abetting. On May 7, 2002, a jury convicted

the defendant of aiding and abetting a drug conspiracy to distribute marijuana. The jury was also

given the Drug Quantity instruction, to which it specifically found that the conspiracy the defendant

aided involved more than one hundred (100) kilograms of marijuana. The jury found the defendant

not guilty of the other charges against her, including conspiracy to distribute marijuana.

       On September 24, 2002, The district court sentenced the defendant to a term of eighty-four

(84) months in prison with five (5) years of supervised release. This was within the Federal

Sentencing Guidelines range of seventy-eight (78) to ninety-seven (97) months imprisonment and

four (4) to five (5) years of supervised release. The defendant timely appealed, challenging her

conviction and the sentence imposed by the district court. On appeal, the defendant argued, inter

alia, that the jury instructions and the jury verdict form were unconstitutional because they did not

require the jury to make a specific finding as to how much marijuana involved in the conspiracy was

reasonably foreseeable to the defendant specifically, as opposed to the drug conspiracy as a whole.

Haynes I at 506. This Court affirmed the defendant’s conviction and sentence on May 28, 2004,

holding that the jury’s offense-specific finding that one hundred (100) kilograms of marijuana were

involved in the conspiracy was sufficient, and that a defendant-specific finding as to quantity was

not required. The defendant filed a petition for writ of certiorari in the United States Supreme Court

which granted the writ, vacated the decision of this Court, and remanded the case to this Court for

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United States v. Haynes

“further consideration in light of U.S. v. Booker, 543 U.S. [220 (2005)].” Haynes v. U.S., 543 U.S.

1112 (2005).

       On remand, this Court in turn vacated The defendant’s sentence and remanded to the district

court for resentencing. U.S. v. Haynes, 124 Fed. Appx. 1002 (6th Cir. 2005). The district court re-

sentenced the defendant to the statutory minimum term of sixty (60) months imprisonment in a

federal correctional facility, with four (4) years of supervised release. The defendant appealed, once

again claiming the district court erred by failing to instruct the jury to make a defendant-specific

finding as to drug quantity and by failing to grant a safety valve reduction in her sentence.

                                          II. ANALYSIS

A.     Jury Instruction Argument Not Properly Before this Court

       The defendant’s argument regarding the propriety of the jury instructions and jury verdict

form is not properly before this Court for two reasons: (1) this Court’s remand was limited to

resentencing, not jury instructions which affect conviction; and (2) this Court has previously heard

and rejected this very argument.

       1. Remand Limited to Resentencing

       On remand, the district court is constrained by the scope of the mandate under which it is

operating. U.S. v. Moore, 131 F.3d 595, 598 (6th Cir. 1997). The district court must “implement

both the letter and the spirit of the mandate” and take into account “the circumstances it embraces.”

Id. at 599 (citing U.S. v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994)). Interpretation of an appellate

mandate is a legal issue which this Court reviews de novo. Moore, 131 F.3d at 598.

       In remanding the case, this Court declared: “We vacate Haynes’ sentence and remand to the

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United States v. Haynes

district court for resentencing.” Haynes, 124 Fed. Appx. at 1002. The district court properly

interpreted this Court’s remand to be limited to resentencing. At the defendant’s resentencing

hearing, the district court expressly recognized the limitations on remand, stating: “I am bound by

what the Sixth Circuit told me to do on remand, and the remand order could not be more clear that

the sentence was vacated and the case was remanded to me for resentencing only.” As the remand

was limited to resentencing, the district court’s decision not to address the defendant’s argument

regarding the jury instructions was proper.

       While the defendant also argues that this Court erred in interpreting the remand from the

United States Supreme Court, that directive could not have been clearer when it stated that the “case

[is] remanded to the United States Court of Appeals for the Sixth Circuit for further consideration

in light of United States v. Booker, 543 U.S. [220 (2005)].” Haynes, 543 U.S. 1112. In Booker, the

Supreme Court held that the Federal Sentencing Guidelines are no longer mandatory on sentencing

courts, only advisory. Booker, 543 U.S. at 245. Remands for consideration in light of Booker are

for the purpose of allowing the sentencing court to determine if it would have granted a different

sentence, had it known at the time of sentencing that the Sentencing Guidelines were advisory, not

mandatory. See U.S. v. Barnett, 398 F.3d 516 (6th Cir. 2005).

       In Barnett, this Court held that a defendant who was sentenced pre-Booker to a term of

imprisonment in the middle of the sentencing guideline range was entitled to resentencing during

which the district court would determine whether the sentence would have been different, had the

district court known the Sentencing Guidelines were merely advisory. Id. at 525. In the instant case,

on remand for resentencing the district court decreased the defendant’s sentence from eighty-four

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United States v. Haynes

(84) months imprisonment and five (5) years supervised release, a sentence in the middle of the

guideline range, to imprisonment for sixty (60) months, the statutory minimum term, and four (4)

years supervised release. The district court stated that this sentence was a reasonable post-Booker

given the relevant facts of the case.

       Given that Booker is concerned with sentencing and the factors that may be taken into

consideration during sentencing, other jurisdictions have also declined to extend the scope of

“remands in light of Booker” beyond the issue of sentencing. See e.g. U.S. v. Loredo-Torres, 2006

WL 197601, *1 (5th Cir. January 27, 2006)(unpublished) (refusing to extend the scope of remand

beyond resentencing when the Supreme Court specifically stated that the remand was for further

consideration in light of Booker).

       Remands “in light of Booker” are concerned with sentencing - the defendant’s jury

instruction argument goes to her conviction. Prior to remanding the case to this Court, the Supreme

Court would have had before it this Court’s earlier decision. After expressly stating that the remand

was for further consideration in light of Booker, had the Supreme Court intended that the remand

be in regard to any other issue, it would have so stated.

       2. Law-of-the-Case Doctrine

       In her first appeal to this Court, the defendant raised the same argument she does on her

second appeal - that the district court erred by not instructing the jury to make a defendant-specific

finding as to the amount of marijuana involved in the conspiracy. After considering the defendant’s

argument on her first appeal, a panel of this Court declared that an offense-specific finding as to drug



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United States v. Haynes

quantity, such as the one made by the jury during the defendant’s trial, is sufficient. Haynes I, at

506. Determinations by a Court of Appeals become the law of the case and are binding on both the

district court on remand and the Court of Appeals upon subsequent appeal. Moored, 38 F.3d at

1421-22. Under this law-of-the-case doctrine, a prior ruling may only be reconsidered where: “(1)

substantially different evidence is raised on subsequent trial; (2) where a subsequent contrary view

of the law is decided by the controlling authority; or (3) where a decision is clearly erroneous and

would work a manifest injustice.” McKenzie v. BellSouth Telecommunications, Inc., 219 F.3d 508,

513 n.3 (6th Cir. 2000)(citing Hanover Ins. Co. v. American Eng’g Co., 105 F.3d 306, 312 (6th Cir.

1997)). The defendant having failed to established none of the criteria required for reconsideration,

her argument as to the propriety of the jury instructions is precluded by the law-of-the-case doctrine.

B.      Safety Valve Reduction

        Title 18 U.S.C. § 3553(f) permits courts to impose sentences for certain drug-related offenses

without regard to the statutory minimum sentence if five conditions are met. This reduction in

sentence is often referred to as a “safety valve” reduction. As the safety valve determination is

based on factual findings, this Court reviews only for clear error a district court’s decision not to

grant a safety valve reduction. U.S. v. Adu, 82 F.3d 119, 124 (6th Cir. 1996). This standard of

review was reinforced post-Booker in U.S. v. Hazelwood, 398 F.3d 792 (6th Cir. 2005), where the

Court reiterated that it will review a district court’s factual findings related to sentencing for clear

error. Id. at 795.

        There are five conditions that must be met before a defendant is eligible for a safety valve


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United States v. Haynes

reduction. See 18 U.S.C. § 3553(f). It is undisputed that the defendant satisfied the first four

conditions. The fifth prerequisite for this defendant to qualify for a safety valve reduction is that she

must fully disclose to the Government all information she has “concerning the offense or offenses

that were part of the same course of conduct or of a common scheme or plan.” 18 U.S.C. §

3553(f)(5). At the resentencing hearing, the district court found the defendant did not fully disclose

to the Government all knowledge and information she had regarding the drug conspiracy, thereby

failing the fifth prong of the safety valve. The district court cited several instances where the proof

showed that the defendant did not fully disclose information to the Government. A defendant bears

the burden of proving by a preponderance of the evidence that he or she is entitled to a safety valve

reduction. Adu, 82 F.3d at 123-24; U.S. v. Rucker, 133 Fed. Appx. 187, 194-95 (6th Cir.

2005)(holding that “the defendant bears the burden of showing eligibility for the safety valve by a

preponderance of the evidence”)(citing U.S. v. Salgado, 250 F.3d 438, 459 (6th Cir. 2001)). The

defendant contends that the four-page statement she provided to the Government regarding the drug

conspiracy is evidence of her full disclosure, however, the district court found she did not prove by

a preponderance of the evidence that she disclosed to the Government all information regarding the

drug conspiracy. The sheer length of the statement is of no consequence if the defendant possessed

additional information that she did not disclose to the Government, which was the finding of the

district court. Because there was substantial factual evidence on the record to support the district

court’s decision not to grant a safety valve reduction, there was no clear error.

        The defendant’s argument that U.S. v. Sherpa, 110 F.3d 656 (9th Cir. 1996), authorizes a



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court to give credence to a defendant’s claim of innocence and grant a safety valve reduction even

after a jury finds her guilty of the crime, fails to account for the significantly disparate facts of

Sherpa and the instant case. In Sherpa, the district court, believing that, despite the jury’s guilty

verdict, defendant Sherpa was unaware of the heroin he transported, and that he provided the

Government with all of the information he possessed, granted the defendant a safety valve reduction

after he was convicted of transporting heroin into the United States from Thailand. Id. Unlike the

defendant in Sherpa, the instant defendant was not a “culturally sheltered” farmer from Nepal who

agreed to carry one suitcase into the United States. Id. at 659. The defendant is a United States

citizen who took several criminal justice classes in college. The record also indicates the defendant

received or was involved in the receipt of fifty-nine (59) packages which contained over nine

hundred ninety-four (994) pounds, over four hundred (400) kilograms, of marijuana. Additionally,

the defendant continued to accept packages even after discovering that some of them contained

marijuana, and she served as bailor for others involved in the drug trafficking when they were

arrested. Despite the defendant’s argument to the contrary, the unique facts of Sherpa do not

mandate a safety valve reduction in this case.

                                     III.   CONCLUSION

       For the foregoing reasons, we AFFIRM the defendant’s conviction and resentencing.




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