                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  February 4, 2009
                      UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellant,
                                                        No. 06-3067
 v.                                                      (D. Kan.)
                                             D. Ct. No. 00-CR-40024-SAC-006
 CHARLES WILLIAM HOPKINS,

          Defendant - Appellee.


                              ORDER AND JUDGMENT *


Before O’BRIEN, HOLLOWAY and HOLMES, Circuit Judges.


      This is the second appeal from the sentencing of Charles William Hopkins

for his role in a multi-state conspiracy to manufacture and distribute

methamphetamine. In the first appeal, we reversed and remanded for re-

sentencing, concluding the district court applied an erroneous “proportional

estimate” methodology to determine the quantity of drugs attributable to Hopkins.

United States v. Hopkins, 128 Fed. App. 51, 55 (10th Cir. 2005) (Hopkins I). On

remand, the district court held a two-day hearing. It allowed the government to



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
present witnesses. However, it ultimately declined to consider this evidence

because the government had not shown good cause for failing to present the

testimony at the first sentencing. United States v. Hopkins, 408 F. Supp. 2d 1123,

1137 (D. Kan. 2005) (Hopkins II). After a lengthy analysis, the district court

sentenced Hopkins to 108 months imprisonment, a net decrease of thirteen months

from his original sentence of 121 months. Id. at 1147. The government appeals

asserting the district court erred in rejecting its evidence at the second sentencing

hearing and again applied an improper sentencing methodology. Exercising

jurisdiction pursuant to 18 U.S.C. § 3731 and 28 U.S.C. § 1291, we vacate

Hopkins’ sentence and again remand for re-sentencing.

                                I. BACKGROUND

      Hopkins was one of twenty defendants named in a seventy-seven count

superseding indictment filed on October 5, 2000. He was named in three counts:

conspiracy to manufacture and distribute more than one kilogram of a mixture or

substance containing a detectable amount of methamphetamine in violation of 18

U.S.C. § 2 and 21 U.S.C. § 846 (Count 1) and two counts of using a telephone to

facilitate the offense in violation of 21 U.S.C. § 843(6) (Counts 10 & 11).

      At trial, the evidence demonstrated Hopkins participated in the conspiracy

by stealing industrial-grade chemicals and laboratory equipment from his

employer and providing the materials to Shane Wright, the methamphetamine




                                          -2-
“cook” 1 and leader of the conspiracy. Hopkins provided materials used to

manufacture the methamphetamine in exchange for finished product. On January

26, 2000, Shane Wright and Hopkins’ brother, Michael, were arrested near

Springfield, Missouri. Immediately following news of the arrest, Hopkins went to

his brother’s home to remove an illegal firearm and then to Wright’s house to

assist in removing drug manufacturing evidence and guns. Wright returned and

reconstituted his lab to produce another cook. The jury found Hopkins guilty of

conspiracy to manufacture and distribute methamphetamine (Count 1), but

concluded the government had not proved the conspiracy involved 50 grams or

more. 2 Hopkins was acquitted on Counts 10 and 11.

A. Original Sentence

      Hopkins’ presentence report (PSR) noted that the specific date Hopkins

became involved in the conspiracy was not certain but he began supplying

equipment and chemicals to Wright some time in 1999. Because the date of

Wright’s arrest and subsequent destruction of evidence was certain (January 26,



      1
        “Cook” is a term used in the methamphetamine trade as a noun, meaning
the person who actually performs the manufacturing process for the freshly
prepared methamphetamine. It is also used as a noun meaning an occasion when
the methamphetamine is manufactured. A third use is as a verb, meaning to
produce methamphetamine.
      2
        This determination changed the applicable statutory penalty section by
removing the statutory minimum sentence of ten years in prison and imposing a
maximum of twenty years, as opposed to life imprisonment. See 21 U.S.C.
§ 841(b)(1)(A)(viii) and § 841(b)(1)(C).

                                       -3-
2000), the PSR concluded Hopkins was responsible for “at least the quantity of

methamphetamine produced by Shane Wright from January 2000, until the raids

and subsequent arrests of the defendant and codefendants in this case in March

2000.” (R. Vol. III at 35.) The PSR determined the evidence at trial established

Wright manufactured approximately sixteen pounds (7.25 kilograms) of

methamphetamine in the two months prior to his January arrest. The PSR then

extrapolated a quantity of sixteen pounds for the two-month period between the

date Hopkins assisted in the clean up of his brother and Wright’s houses and the

date Hopkins’ involvement in the conspiracy ended, his arrest in March. 3

      Based on this drug quantity, the PSR calculated a base offense level of 38.

Adding two levels for possession of a firearm and two levels for obstruction of

justice, the PSR reached a total offense level of 42. With an offense level of 42

and a Criminal History Category of I, the guidelines sentence was 360 months to

life imprisonment. Hopkins filed a written objection to the drug quantity used to

calculate his base offense level. 4 Primarily, he argued the jury’s finding of a

lesser drug quantity and his limited involvement in the conspiracy demonstrated

his sentence should be based only on the drugs he received. He also stated, “DEA

Agents’ affidavits indicate . . . Wright’s meth gang ceased all drug activity for the

      3
        The PSR applied the November 1, 1998 edition of the United States
Sentencing Guidelines. All references to the guidelines in this order and
judgment refer to the 1998 edition unless otherwise indicated.
      4
          Hopkins presented other written objections which are not relevant here.

                                         -4-
substantial period of time before their arrest on March 27, 2000” and a co-

defendant stated there was only one cook in the time between the clean up and the

March arrests. (Vol. III at 52.)

      The government’s written response pointed to the trial evidence of

Hopkins’ two-fold participation in the conspiracy – the provision of supplies for

manufacturing the drug and his concealment of evidence – and asserted it was “a

sufficient basis on which to hold [Hopkins] accountable for the entire amount of

drugs attributable to the conspiracy as a whole.” (Id. at 56.)

      Prior to the day of the sentencing hearing, neither the government nor

Hopkins intended to question witnesses before the court. Several hours before the

sentencing hearing, the district court provided the government and Hopkins’

counsel a proposed sentencing order applying a “proportionality analysis” which

was not advanced by either party. However, at sentencing, the government

objected to the court’s proposed findings and asked for a continuance. The

government explained it needed more time to review the record of the six-week

trial to address the court’s particular factual findings forming the basis for its

analysis. It also asked for a continuance to present evidence regarding the court’s

relevant conduct determinations. Hopkins objected to a continuance, claiming it

would be “very burdensome.” (Vol. II at 229.) The district court denied the

government’s request and proceeded to sentencing.

      The court concluded Hopkins should not be punished for all acts of the

                                          -5-
conspiracy because the scope of his agreement in the conspiracy was more

circumscribed. It determined Hopkins should be responsible for 21 grams of a

methamphetamine mixture, representing the amounts he received from Wright for

materials, and 28.35 grams of actual methamphetamine based on his proportional

involvement in the post-January “cook.” Although the quantity produced during

the post-January cook was approximately one pound (400 grams), the court

determined 28.35 grams represented Hopkins’ “proportional involvement.” (R.

Vol. I at 128.) These quantities translated to a base offense level of 26. The

court added the two-level enhancements for possession of a dangerous weapon

and obstruction of justice for a total offense level of 30, resulting in a sentencing

range of 97-121 months. The court sentenced Hopkins to the top of the range,

121 months imprisonment. It overruled Hopkins’ objection to the PSR’s failure

to apply a four-level reduction for his “limited role,” noting it was holding

Hopkins responsible only for the “relevant conduct with which he was directly

involved.” (Id. at 139-40.)

      On appeal, we determined the district court used an improper methodology

and remanded for re-sentencing. Hopkins I, 128 Fed. App. at 55. We noted, “a

finding by the court that Hopkins’s role in the conspiracy was relatively small

does not excuse it from making the relevant conduct inquiries.” Id. We

instructed the court to “calculate the range prescribed by the Guidelines . . . then .

. . review the other relevant factors contained in the Guidelines, including those in

                                          -6-
§ 3553(a), and apply a reasonable sentence” in accord with United States v.

Booker, 543 U.S. 220 (2005), which was issued during the pendency of Hopkins’

first appeal. Id. at 56.

B. Sentence on Remand

      At the re-sentencing hearing, the government called Wright, his wife Tracy

Wright, and Hopkins’ brother, Michael. Wright testified Hopkins became

involved in the conspiracy some time between March 1999 and March 2000.

Tracy Wright testified he became involved in “the summer of 1999 . . . maybe

October.” (R. Vol. II at 385-86.) Michael testified Hopkins became involved in

the operation about four to six months before Hopkins’ arrest in March 2000,

“maybe” September or October 1999. (Id. at 438-39.) According to these

witnesses, the chemicals and equipment provided by Hopkins enabled Wright to

manufacture exceptionally large amounts of methamphetamine from each cook.

They further testified Hopkins not only used, but sold some of the product he

received from Wright. In addition, Tracy Wright described in detail Hopkins’

involvement in removing evidence from Wright’s home after her husband’s arrest.

      In its Memorandum and Order, the district court disregarded this evidence

because the government failed to carry “its burden of showing good cause for

waiting until now to come forth with evidence and arguments that were readily

available for presentation at the original sentencing.” Hopkins II, 408 F. Supp. 2d

at 1137. The court found there was nothing “of record to show either diligence or

                                        -7-
a good faith reason for the government’s delay in making and pursuing

[Hopkins’] objection to the [PSR’s drug quantity determination].” Id. It

observed the government was aware of Hopkins’ objection to the PSR and was

given the court’s memorandum but, “[d]espite this knowledge, the government

chose not to present evidence at the first sentencing and even argued initially on

remand, as reflected in its first sentencing memorandum, that the court should

rely on . . . erroneous calculations and findings in the PSR.” Id.

      The court calculated Hopkins’ base offense level based on his involvement

after January 26, 2000, (the date of Wright’s arrest) and determined Hopkins

provided an “unspecified amount of liquid chemicals, some glassware . . .

respirator masks and a set of scales” and assisted in removing and concealing

evidence. Id. at 1138. It concluded the evidence demonstrated Hopkins only

provided equipment to barter for small amounts of methamphetamine and, thus,

did not enter into a conspiracy to manufacture large amounts of

methamphetamine. Therefore, the court again “attributed 21 grams of a

methamphetamine mixture for the defendant’s bartering of chemicals, glassware

and equipment.” Id. at 1139. Although the court recognized Hopkins became

more involved when he agreed to destroy and conceal evidence, the court found

Hopkins’ “principal motive . . . was to protect his brother.” Id. at 140 (quotations

omitted). The court concluded Hopkins could not foresee that Wright’s next cook

would yield one pound (approximately 400 grams) because Hopkins’ previous

                                         -8-
exposure to drug amounts was limited to Wright’s “personal stash,” which was

equivalent to 54.4 grams (actual). Based on this amount, the court determined

Hopkins’ base offense level was 28.

      Turning to sentencing enhancements, the court determined a two-level

enhancement was appropriate under USSG §2D1.1(b)(1) because the government

had proved by a preponderance of the evidence that Hopkins possessed a

dangerous weapon when removing guns from his brother and Wright’s houses.

Id. at 1141-42. Similarly, the court applied a two-level increase pursuant to

USSG §3C1.1 for obstruction of justice based on Hopkins’ involvement in

concealing evidence. However, unlike the first sentencing where the court

determined Hopkins was not entitled to a four-level downward adjustment as a

minimal participant in the conspiracy, the court found the evidence at trial

supported a two-level reduction for a minor role because Hopkins was a “small

player” who sold drugs “primarily to support his own habit.” Id. at 1143. The

court’s determinations resulted in a total offense level of 30. With a Criminal

History Category of I, the guidelines range was again 97 to 121 months

imprisonment. Id. at 1143-44.

      Addressing the 18 U.S.C. § 3553(a) factors, the court reiterated its

assessment of Hopkins’ relatively limited and minor role, his motivation to

protect his brother, his “continuous and noteworthy” employment history, and his

representation that he received medals and commendations while in the military.

                                         -9-
Id. at 1144-45. The court determined these factors suggested an appropriate

sentence less than the top of the guidelines range. Id. Looking at the need to

avoid unwarranted sentencing disparities, the court rejected the government’s

suggestion that Hopkins’ participation was the equivalent of specific other co-

conspirators. Instead, it found his participation akin to that of Rhonda Hibbard, a

chemist who assisted Wright in perfecting his product. Hibbard was sentenced to

54 months imprisonment based on the government’s USSG §5K

recommendations. The court gave significant weight to her sentence in

sentencing Hopkins. Id. at 1147.

      The court concluded a sentence of 108 months was within the sentencing

range and consistent with the seriousness of Hopkins’ minor role in the

conspiracy. In a footnote, it noted that even had it “accepted the government’s

position for a base offense level of 38 . . . [it] would not have imposed a sentence

longer than 108 months because of the other sentencing factors . . . [it]

discussed.” Id. at 1147 n.9.

                                 II. DISCUSSION

      The government raises four issues: (1) the district court erred in refusing to

consider the evidence presented at re-sentencing, (2) the sentence was the result

of a flawed methodology used to determine relevant conduct, (3) the court erred

in applying a two-level reduction for Hopkins’ role in the offense, and (4) the

sentence is unreasonable. Because the government’s arguments rest primarily on

                                         -10-
the evidence introduced at re-sentencing, our conclusion that the district court

abused its discretion in refusing to consider the government’s evidence obviates

the need to address the remaining issues in detail.

      Generally, re-sentencing on remand is de novo. United States v. Keifer,

198 F.3d 798, 801 (10th Cir. 1999). “[D]e novo resentencing permits the receipt

of any relevant evidence the court could have heard at the first sentencing

hearing.” Id. (quotations omitted). Such review “furthers the goals of

predictability and consistency in sentencing, because it allows for the fullest

development of the evidence relevant to a just sentence.” United States v.

Matthews, 278 F.3d 880, 886 (9th Cir. 2002) (en banc) (quotations omitted). The

district court, however, is not obligated to conduct a de novo re-sentencing.

“[O]n remand [the court] has the discretion to entertain evidence that could have

been presented at the original sentencing even on issues that were not the specific

subject of the remand.” Keifer, 198 F.3d at 801 (emphasis added). Thus, a

court’s decision to limit the scope of re-sentencing is reviewed for abuse of

discretion.

      We recognize there are situations where it is appropriate to limit re-

sentencing to the record as it stands. In United States v. Campbell, we concluded

the district court had misapplied a guidelines’ enhancement, in large part due to

the government’s arguments at sentencing. 372 F.3d 1179 (10th Cir. 2004). We

vacated the defendant’s sentence and, on remand, limited re-sentencing to the

                                         -11-
established record, declining “to give [the government] a second bite at the

apple.” Id. at 1183. We did so because, “[a]lthough Defendant alerted the

government to the deficiency in its evidence [at sentencing], the government did

not seek to cure the deficiency [by asking for a continuance], and instead made

patently erroneous legal arguments as to why such proof was not needed.” Id.

(emphasis added).

      Similarly, in United States v. Forsythe, we limited re-sentencing to the

established record because the government knew the evidence was insufficient to

prove a prior crime of violence well in advance of sentencing, but made no

attempt to present the necessary evidence – even though given the chance to do so

at two subsequent sentencing hearings. 437 F.3d 960, 963-64 (10th Cir. 2006).

These cases reflect the general proposition that the government, forewarned of an

evidentiary problem and shouldered with the burden of proof, must go forward

with sufficient evidence or suffer the consequences. See United States v. Dickler,

64 F.3d 818, 832 (3d Cir. 1995) (“[The government’s] case should ordinarily have

to stand or fall on the record it makes the first time around.”).

      In both of these cases, the insufficiency of the government’s evidence was

obvious and the government ignored the deficiency even though given a chance to

rectify the situation. That is not the case here. The government responded to

Hopkins’ drug quantity objection, which for the most part was a legal argument

regarding relevant conduct. Though the government was on notice that the PSR’s

                                         -12-
calculations regarding the quantity of methamphetamine manufactured after

Hopkins concealed evidence may be overstated, its response did not rely solely on

Hopkins’ post-January activities. Rather, it argued: (1) the difference between

proof beyond a reasonable doubt at trial and proof by a preponderance of the

evidence at sentencing permits relevant conduct to include drug quantities above

the jury’s estimate, (2) the industrial equipment provided by Hopkins could

establish a reasonable inference he would foresee production of large amounts of

methamphetamine, (3) trial testimony established the conspiracy produced over

200 pounds of actual methamphetamine, and (4) similar co-conspirators had been

sentenced at a base offense level of 38. As a result, the government supported the

PSR’s estimate of the drug quantity attributable to Hopkins based on his

involvement in the conspiracy both before and after the January clean-up.

      Unlike Campbell, the government’s legal argument was not “patently

erroneous.” In addition, the deficiency in the evidence was not as clearly defined

as it was in Campbell. Moreover, we cannot say the government should have

anticipated the court’s unique interpretation of the facts in determining Hopkins’

“proportional involvement.” As the Third Circuit has noted, “it will frequently

not be fair to expect the government to be prepared with evidence concerning any

theory . . . advance[d] at the sentencing hearing.” Dickler, 64 F.3d at 832. Here,

the sentencing judge was the same judge who had listened to six weeks of

testimony and had sentenced Hopkins’ co-defendants. Certainly the government

                                        -13-
could rely on a reasonable inference that Hopkins was involved with the

conspiracy before the end of January. By that time, he was sufficiently trusted

and relied upon to assist in dismantling the drug manufacturing operation and

concealing the materials – only to return them to Wright to be used again.

      “When a dispute exists about any factor important to the sentencing

determination, the court must ensure that the parties have an adequate

opportunity to present relevant information.” USSG §6A1.3, comment. (1998)

(emphasis added). The government believed it had prepared a sufficient response

to Hopkins’ objections prior to the first sentencing hearing. The district court

issued its report taking a unique view of the facts, such as Hopkins’ inability to

foresee the amount of the last cook, which had not been offered by either party.

The government had only three hours to review a six-week trial transcript to

counter the court’s interpretation of the facts and to prepare an adequate

“comment on the probation officer’s determinations and other matters relating to

an appropriate sentence.” Fed. R. Crim. P. 32(i)(1)(C) (emphasis added); see

Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2465 (2007) (“[T]he

sentencing court subjects the defendant’s sentence to the thorough adversarial

testing contemplated by federal sentencing procedure.”); see also Burns v. United

States, 501 U.S. 129, 136 (1991) (recognizing importance of notice and

meaningful opportunity to be heard at sentencing). Even so, the government’s

timely request for a continuance was denied, despite the likelihood that the

                                         -14-
continuance would have produced evidence of facts critical to the sentencing

determination. 5 See United States v. West, 828 F.2d 1468, 1469-70 (10th Cir.

1987).

         Perhaps the most important distinction here is the fact that the district court

did not notify the parties the evidence would be limited to the established record

prior to the re-sentencing hearing. Indeed, the court actually heard uncontested

testimony which established Hopkins’ involvement in the conspiracy by October

1999 at the latest. He provided industrial grade materials, including pure



         5
        While the government has not argued the district court abused its
discretion at the first sentencing in denying its request for a continuance, the
factors we consider when determining whether an abuse of discretion occurred are
instructive. We consider:

         the diligence of the party requesting the continuance; . . . the purpose
         underlying the party’s expressed need for the continuance; the
         inconvenience to the opposing party, its witnesses, and the court
         resulting from the continuance; the need asserted for the continuance
         and the harm that appellant might suffer as a result of the district
         court's denial of the continuance.

West, 828 F.2d at 1470. The district court noted that “[m]issing from the
government’s arguments and evidence is what amount and kind of chemical,
equipment or glassware were furnished on [the date Hopkins entered the
conspiracy] and what date they may have been first used by Wright.” Hopkins II,
408 F. Supp. 2d at 1131 n.1. This is precisely the information the government
elicited at re-sentencing. Hopkins’ “inconvenience” was slight. He had no
witnesses at the first or second hearing and argued only that a continuance would
be burdensome. These factors indicate a continuance would have allowed the
introduction of important evidence without unduly burdening Hopkins. Had there
been compelling reasons for the court to deny the continuance in the first
instance, the determination to reject the evidence presented at the second
sentencing might find additional support.

                                           -15-
hydrochloric and sulfuric acid, which allowed Wright to “produce extremely pure

methamphetamine . . . about every two weeks” in amounts ranging from “a small

batch [of] three or four hundred grams up to a large batch of one thousand

grams.” (R. Vol. II at 335-36, 341.) Hopkins was “paid” in amounts of

methamphetamine that would increase depending on “how bad [Wright] needed

the item or how well it would benefit” the cook. (Id. at 337.) In addition, Wright

specifically told Hopkins that some of the materials he provided were “too small”

to use with the size of “batches” Wright was producing. (Id. at 340.) All the

witnesses testified Hopkins not only used the drug, but also packaged and sold it.

      Had the government known the district court was going to disregard its

evidence, the hearing would have been very different. The government would

have mustered all possible evidence from the trial transcript and other evidence of

record. But it did not, depending instead on the first-hand testimony of its

witnesses. However, after hearing this evidence, the district court chose to

disregard it. Our research has failed to uncover any case where the court allowed

presentation of evidence at re-sentencing and then determined equity required its

exclusion. The only purpose we can fathom is to sanction the government. But

the extremity of this sanction goes far beyond the egregiousness of the

government’s conduct. United States v. Golyansky, 291 F.3d 1245, 1249 (10th

Cir. 2002) (exclusion of witness improper sanction for a discovery violation,

noting “[i]t would be a rare case where, absent bad faith, a district court should

                                         -16-
exclude evidence rather than continue the proceedings”). While we do not

condone the government’s failure to respond immediately and specifically to

Hopkins’ argument regarding the amount of post-January production, the

government did not act in bad faith. It was caught unaware at the first hearing

but immediately sought to redress its oversight. Though that opportunity was

denied, it submitted evidence at its next opportunity. This is not the sort of

“second bite at the apple” or unfair opportunity contemplated in our earlier cases.

United States v. Torres, 182 F.3d 1156, 1164 (10th Cir. 1999).

      The district court abused its discretion in failing to consider the

government’s evidence at re-sentencing. 6 It arbitrarily refused to consider

evidence before the court which clarified Hopkins’ relevant conduct, even though

there is no indication the government engaged in “deceptive, obstructive, or

otherwise inappropriate conduct.” Matthews, 278 F.3d at 889. While the

government could have done more to prepare for the first sentencing, the court’s

refusal to fully explore the factual issues at re-sentencing prejudiced the


      6
        United States v. Booker, 543 U.S. 220 (2002), “fundamentally changed
the way defendants are sentenced.” United States v. Sims, 428 F.3d 945, 960
(10th Cir. 2005). It invalidated the mandatory nature of the guidelines, making
them advisory, and invited a new approach to the district court’s consideration of
evidence at re-sentencing. See United States v. Galarza-Payan, 441 F.3d 885,
887 (10th Cir.), cert. denied, 127 S.Ct. 434 (2006). The government argues the
opportunity to present new evidence relevant to an advisory sentencing scheme,
alone, would warrant de novo re-sentencing. However, the government does not
explain why the evidence it presented would not have been warranted prior to
Booker. Therefore, we will not address this issue.

                                         -17-
government by excluding critical evidence.

      As to the government’s remaining arguments, the evidence does not support

the district court’s determination that Hopkins’ involvement was limited to post-

January activities, or that he could not foresee Wright would produce more than

his “personal stash.” Thus, the district court’s determination of the guidelines

range is clear error. “A sentence cannot . . . be considered reasonable if the

manner in which it was determined was unreasonable, i.e., if it was based on an

improper determination of the applicable Guidelines range.” United States v.

Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). When the sentence is procedurally

unreasonable, we must remand “without reaching the question of [substantive]

reasonableness -- unless the error is harmless, that is, unless the error in

calculating the Guidelines range did not affect the sentence selected.” United

States v. Tom, 494 F.3d 1277, 1282 (10th Cir. 2007) (quotations omitted). The

error here is not harmless. On remand, the district court shall consider all

relevant evidence. 7



      7
        The government requests reassignment of Hopkins’ case on remand.
Because we direct reassignment of a case “only in the most unusual and
exceptional circumstances,” we deny the request. United States v. Roberts, 88
F.3d 872, 885 (10th Cir. 1996), superseded on other grounds by statute, Omnibus
Appropriations Act of 1997, Pub. L. No. 104-208, 110 Stat. 3009-25, as
recognized in United States v. Meacham, 115 F.3d 1488, 1491 (10th Cir. 1997).
We trust the district court will fully reflect on all the evidence and the reasonable
inferences arising therefrom in reaching its final decision. The government’s
motion to strike certain attachments to Appellee’s brief is also denied.

                                          -18-
      We REMAND to the district court with instructions to re-sentence Hopkins

in accordance with this Order and Judgment.

                                              ENTERED FOR THE COURT


                                              Terrence L. O’Brien
                                              Circuit Judge




                                      -19-
No. 06-3067, United States v. Hopkins

HOLLOWAY, Circuit Judge, dissenting:


      I am not convinced that the district judge abused his discretion in declining

to consider the evidence submitted by the government at the second sentence

hearing. The majority does not fully address the grounds for the trial judge’s

ruling, and I believe that the abuse of discretion standard of review requires us to

do so. The majority acknowledges that “a court’s decision to limit the scope of

re-sentencing is reviewed for abuse of discretion. . . ” Majority Opinion at 11.

And “there are situations where it is appropriate to limit re-sentencing to the

record as it stands.” Id. See United States v. Campbell, 372 F.3d 1179, 1183

(10th Cir. 2004). Considering the grounds for the judge’s evidentiary ruling

properly, I am convinced that the ruling should clearly be upheld. Accordingly, I

respectfully dissent.

      The excluded evidence is very succinctly summarized by the majority. As

the summary shows, the excluded evidence told the basic story of the Defendant’s

involvement in this substantial conspiracy, with the witnesses attempting to recall

when the Defendant first became involved and what the extent of his involvement

was. (The evidence is more fully detailed in the Brief of Appellant at pp. 27-32.)

      It is important to focus on why it was only after remand from the first

appeal that the government presented this evidence. The government conceded at

the hearing below that it had not developed these facts with specificity at trial.
United States v. Hopkins, 408 F. Supp. 2d 1123, 1137 (D. Kan. 2005). No

challenge is raised to the sufficiency of the evidence to support the conviction.

But as the prosecution must have known, the judge’s obligation to calculate drug

quantity at sentencing, as part of the required relevant conduct analysis, required

a more detailed evidentiary basis than was necessary to attain conviction. But the

government was not prepared at the first sentencing hearing to present the

witnesses that it presented at the second hearing, even though this was apparently

the best evidence that the government had available to show the Defendant’s role

in the conspiracy. 1

      The government chose instead to rely on the PSR rather than to present

evidence at the first sentencing hearing, in spite of the fact that a key assumption

made by the probation officer in the PSR (that Shane Wright had continued to

produce methamphetamine for two months after his initial arrest in January 2000

at about the same pace as before) had been challenged by Defendant’s objections

to the PSR. Not only that, but the trial evidence on the point had apparently been

conflicting, as our Order and Judgment in the first appeal quoted the trial judge as

having said that the “more credible evidence at trial establish[ed] that . . . after

his arrest Shane Wright did not continue manufacturing methamphetamine at the

      1
       I am not aware of any suggestion that the government could not have
presented these witnesses at the first hearing had it been prepared to do so.
Moreover, as counsel for the government admitted at oral argument, the
government did not tell the trial judge, at the first sentencing hearing, that it
wanted a continuance so that it could introduce this testimony.

                                          -2-
same or similar levels as before the arrest.” This, it seems clear, was one basis

(although not the only one) for the trial judge’s later finding that the government

“knew or should have known the weight of evidence did not support the PSR’s

assumption” on drug quantity. 408 F. Supp. 2d at 1137 & n.4. The majority does

not purport to hold this finding to be clearly erroneous. Instead, the majority

finds an abuse of discretion in the judge’s decision not to give the government a

second chance to produce the evidence it should have known was necessary the

first time around, and the majority does so without examining the government’s

conduct.

      The district judge found nothing “to show either diligence or a good faith

reason for the government’s delay in making and pursuing” its objection to the

PSR’s decision to calculate drug quantity only for the time period after January

26, 2000. Id. at 1137. As the majority notes, in the face of the facts that put the

government on notice of the error in the assumption made in the PSR, the

government “even initially argued on remand . . . that the court should rely on . . .

erroneous calculations and findings in the PSR.” (Emphasis mine.) Having failed

to address in any meaningful way the government’s derelictions at the first

sentencing hearing, the majority notes without further comment the fact that the

government continued to cling to its flawed position on the PSR’s critical error

even after remand from the first appeal.

      In sum, there is no basis for finding an abuse of discretion in the judge’s

                                           -3-
rejection of the evidentiary showing, especially since the trial judge’s reasoning

has not been fully addressed, much less rebutted. It seems that the district court’s

proposed findings, issued just hours before the first sentencing hearing, caught

the government by surprise because of the unusual approach the judge took to

calculating the drug quantity at that time. But it seems to me that the majority

disregards the important fact that the government was on notice from the trial

testimony (and other evidence referenced by the district judge in n.4 of his

Memorandum, 408 F. Supp. 2d at 1137) and from the Defendant’s objections to

the PSR that the PSR’s critical assumption was erroneous. 2

      Thus, the key point that the majority fails to address is that, at least in the

view of the trial judge who was most familiar with the case, at the first hearing

the government should have been prepared to present its evidence before the

judge issued his proposed sentencing order which prompted the government to

move, unsuccessfully, for a continuance. The government should have been

prepared to do that because it knew or should have known that evidence from

which the district court could properly make a calculation of the drug quantity to

be attributed to the Defendant had not yet been adduced and that the PSR’s

calculation had been based on a mistaken view of the evidence.

      The majority does not address the district court’s concern that the

      2
       That critical error, as described supra, was that Shane Wright had
continued to manufacture methamphetamine for two months after his first arrest
on January 26, 2000, at about the same rate that he had before.

                                          -4-
government did not show good cause for not being prepared to present its

evidence at the first hearing. The government’s limited time to respond to the trial

judge’s proposed findings and holdings at the first sentencing hearing does not

provide any excuse for its failure to address the error in the PSR and to present

the basic evidence that would support a drug quantity finding that it desired.

This, as I understand it, was the real basis of the district judge’s ruling, and I do

not see how that ruling can be deemed an abuse of his broad discretion. It seems

to have been the district judge’s view that the government was willing to rely on a

PSR that it knew was erroneous because it liked the result, and further that this

less than praiseworthy conduct was exacerbated when the government continued

to cling to that position in its first submission after remand.

      Therefore, I cannot join in saying that “the government’s submission of

evidence on remand was not a second bite at the apple or an unfair opportunity to

make the record that it failed to make in the first instance.” It certainly was an

attempt to make the record that it failed to make in the first instance. There is no

showing that it was an abuse of discretion for the trial judge to conclude that it

was an unfair opportunity which the government sought.

      Accordingly I respectfully dissent.




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