USCA1 Opinion

March 9, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

_________________________
No. 92-1969
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD HARMON BELL,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
___________________
_________________________
Before
Selya, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
_________________________

Sarah Jennings Hunt for appellant.

___________________
F. Mark Terison, Assistant United States Attorney, with whom
_______________
Richard S. Cohen, United States Attorney, was on brief, for the
________________
United States.
_________________________
March 9, 1993
_________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________
single

question:

sentencing

Must

This appeal asks, essentially, a

district

hearing following

its explicit findings and

raised in

the

acknowledged

which

reconvened

I.
I.
__

had

previously

Because we do not believe

is under so wide-ranging

we affirm the judgment below.

appeal,

conclusions on an issue not

the defendant

to be correctly decided?

that the district court

at

defendant's successful

reexamine

appeal and

court,

an obligation,

Prior Proceedings
Prior Proceedings
_________________
Defendant-appellant Richard Harmon Bell
to

an

indictment detailing

charging

him with

convicted

six

receipt

Bell met all

status,1 see, e.g.,

___ ____
(1st Cir.

1992)

criteria),

the

of

U.S.C.

a firearm

op.

at

F.2d ___,
2]

While acknowledging

crimes

attributed to

him

investigation report

(PSI

that he had committed the

in the

PSI Report,

___

(enumerating

of sentence under U.S.S.G.

1991).

by

career offender

v. Fiore, ___
_____
slip

and

922(g)(1) (1988).

three criteria for

92-1601,

presentence

recommended imposition

objected to the

of 18

United States
_____________

[No.

felony convictions

and possession

felon in violation

Believing that

prior

pleaded guilty

Report)

4B1.1 (Nov.

gaggle of

Bell nonetheless

sentencing recommendation on the ground that the

crime of conviction was not a crime of violence.

____________________

1Bell was more than eighteen years old at the time he

perpetrated the offense of conviction; that offense was a crime
of violence; and his record contained six prior convictions for
violent felonies.
2

At the sentencing hearing,

Bell renewed this argument.

Withal,

his counsel declared no fewer than three times, and Bell

himself

stated at

least

twice, that

even

if Bell's

argument

prevailed, he would be subject to a mandatory minimum sentence of

15

years as his prior

within

convictions were sufficient

the purview of the

U.S.C.

924(e)(1)

considered an

armed

Armed Career Criminal

(1988)

(stipulating that

career

criminal

if

he

to place him

Act (ACCA), 18
a

defendant

has

three

is

prior

convictions for violent felonies and if the offense of conviction

is

possession of

lines).

In

the

firearm
course of

which
the

has traveled
sentencing

across

state

proceedings,

the

district court found that Bell had been convicted previously of a

half-dozen
assault

violent crimes

and battery

with

listed in
a dangerous

various episodes of robbery.

to this finding; to
Bell

the PSI

Report, including

weapon, kidnapping,

The defendant lodged no

objection

the exact contrary, statements made

and his counsel

patefied its accuracy.

and

by both

Nevertheless, the

court concluded that the offense of conviction was itself a crime

of violence as defined in U.S.S.G.
a prison term in excess
than

to a

4B1.1 and sentenced Bell to

of 30 years as a career

shorter period

of incarceration

offender rather

as an

armed career

criminal.
Bell
vigorously

disputed

could lawfully
conceded,

appealed the
whether

trigger the

sentence.
a

On appeal,

his counsel

felon-in-possession

career offender guideline.

conviction

Counsel

however, that "based upon [Bell's] prior record, he is

3

subject to

an enhancement . .

. of 15

Armed Career Criminal [Act]."

years to life

We bought counsel's wares, holding

"that, where the offense of conviction is the

convicted

felon

conviction
the

in

knowing

possession

of

offense of being a
a

firearm,

the

is not for a `crime of violence' and that, therefore,

career

offender

provision

guidelines does not apply."

703

under the

(1st

Cir. 1992).

the

federal

sentencing

United States v. Bell, 966 F.2d 703,

_____________
____

Hence,

remanded for resentencing

of

we

vacated Bell's

in light of

our opinion.

sentence and
See
___

id. at
___

707.
At the
time sought
and,

resumed sentencing hearing, Bell

to challenge the

through that medium, his

ruled that the objection was

armed career criminal.

for the first

validity of his

prior convictions

ACCA status.

The district court

untimely.

It sentenced Bell as

This appeal ensued.

II.
II.
___
Discussion
Discussion
__________

an

Bell strives gallantly to persuade us that the district

court was obliged to
all of

the six

that the

entertain his belated challenge to

predicate convictions;

court abused its discretion

or, in

some or

the alternative,

in refusing to do

so.

We

find both parts of this asseverational array unconvincing.

A.
A.
__
The
dispelled.
read

first

of

appellant's

contentions

is

easily

An appellate court's disposition of an appeal must be

against the backdrop of prior proceedings in the case.

See
___

United States v.
_____________

Cornelius, 968
_________

(explaining that

a remand does not

entire

case); United States v.

_____________

Cir. 1985) (per

remand

appellate

from the

DeJesus, 752 F.2d

_______

court's power
Court).

1992)

640, 643 (1st

also Kotler v.
____ ______

7, 13-14 (1st Cir. 1992)

Supreme

(8th Cir.

automatically rejuvenate the

curiam) (similar); see

___

Tobacco Co., 981 F.2d

___________
governing

F.2d 703, 706

American
________

(outlining rules

to

reconsider

an issue

It

follows, then,

that

on

in

determining whether a
issue foregone

trial court

in an earlier

is duty bound

to rethink

appeal, the court

an

"must implement

both the letter and spirit of the [previous] mandate, taking into
account the
embraces."

appellate court's

opinion and the

circumstances it

United States v. Kikumura, 947 F.2d

______________
________

1991) (citation and

72, 76 (3d Cir.

internal quotation marks omitted).

We apply

these tested tenets in the instant case.

Here, our
directed

the

accordance
of

that

district

court

to

conduct

was

in some

the

opinion

Bell's

foreclosed

resentencing

detail, see
___

itself

an

Bell, 966
____

F.2d at

single issue that appellant chose to proffer.

on

original appeal

with the opinion issued" in that appeal.

order

discussed,

mandate disposing of Bell's

eschewal

of

the argument

any

other

he now

"in

The context

opinion

which

704-07, the

The opinion relied

challenge

and

belatedly advances.

virtually

We wrote

that, if the district court had not erroneously "sentenced [Bell]

as

career

offender

under

sentencing range apparently

would, in all

section

would have

probability, have

4B1.1,
been much

been sentenced to
5

the

guideline

lower and

he

15 years

in

prison

(the

conviction)."
that

mandatory minimum
Id.
___

at 704.

neither the

consistent
starting

letter

with

the

sentence

It is
nor

the

pavane

the statute

readily evident,
spirit

turnaround

the sentencing

under

that

of

therefore,

our

Bell

mandate

proposes

from scratch

of

is

today:

following remand.

Rather than obligating the district court to examine the validity

of Bell's previous

convictions, our

mandate, read

in the

most

plausible manner, constrained the district court from considering

on remand

a collateral

challenge that

defendant had,

from all

appearances, deliberately bypassed.

The black
legal

letter rule governing

decision made at

unchallenged

in a

ample opportunity
future

one stage of

subsequent
to

do so,

appeal despite
becomes the

law of

the case

of

for

see also
___ ____

United States
_____________

(standing

alternative,
appellate

for

like other

court lest

F.2d 243, 250

v. Duchi,
_____
the

944 F.2d

proposition

that

challenges, must

an ensuing

(D.C. Cir. 1987);

391, 393

ruling become

considerations underlying

(8th Cir.

arguments

be brought

Abandoning this prudential principle

important policy

that particular

See Williamsburg Wax Museum, Inc.

___ _____________________________

Historic Figures, Inc., 810

______________________

case).

criminal case,

the existence

any right to challenge

decision at a subsequent date.

1991)

a civil or

that a

stages of the same litigation, and the aggrieved party is

deemed to have forfeited

v.

this point is

in

the

before an

the law

of the

would threaten the

the law of

the case

doctrine,

such

predictability

as

"stability

in

of results, proper

the decisionmaking

process,

working relationships between

trial and appellate courts, and judicial economy."

v. Rivera-Martinez, 931
_______________

F.2d 148, 151 (1st

United States
_____________

Cir.), cert. denied,

_____ ______

112 S. Ct. 184 (1991).

B.
B.
__
Even where, as here,
not contemplate
may
very

an appellate court's mandate does

resurrecting an issue on remand, the trial court

still possess some limited discretion to reopen the issue in

special situations.

Transp. Co., 110

___________

See id. at
___ ___

150-52; Cochran v.
_______

F.2d 519, 521 (1st Cir. 1940).

M & M
_____

After all, the

so-called "mandate rule," generally requiring conformity with the

commands

of a

superior court

on remand,

is simply

a specific

application of

the law of the

case doctrine and, as

such, is a

discretion-guiding rule subject to an occasional exception in the

interests of justice.

See, e.g., Johnson v. Uncle

Ben's, Inc.,

___

____

_______

__________________

965 F.2d 1363, 1370 (5th Cir. 1992), petition for cert. filed, 61
________ ___ _____ _____

U.S.L.W. 3356 (U.S. Sept. 29, 1992) [No. 92-737]; Jones v. Lewis,
_____
_____
957

F.2d 260,

262

(6th Cir.),

(1992); United States v.

_____________
1987); Piambino
________

cert.
_____

v. Bailey,
______

757

F.2d 1112,

denied, 476
______

Trust Co. v.
_________

American Bonding Co., 630

____________________

Cleveland v.
_________

S. Ct.

Miller, 822 F.2d 828, 832-33

______

1985), cert.
_____

1980);

denied, 113
______

U.S. 1169

FPC, 561
___

125

(9th Cir.

1119-20 (11th

Cir.

(1986); Continental Bank &

___________________
F.2d 606, 608

F.2d 344,

348 (D.C.

(8th Cir.

Cir. 1977);

Banco Nacional de Cuba v. Farr, 383 F.2d 166, 178 (2d Cir. 1967),
______________________
____
cert.
_____

denied, 390 U.S. 956 (1968); see

______
___

also Kotler, 981 F.2d at

____ ______

13 (on remand, lower court ordinarily retains the "naked power to

reexamine"

closed

issue,

but

should

exercise

such

power

"sparingly

and

only

when .

necessary

to avoid

extreme

injustice").

In

doctrine

rule

is a

other words,
of

because

policy

and

the

law

practice,

of the

rather

case

than

jurisdictional limitation, it may tolerate a "modicum of residual

flexibility" in exceptional circumstances.
F.2d

at 151; see also Cochran,

___ ____ _______

Rivera-Martinez, 931
_______________

110 F.2d at 521 (warning against

allowing the

law of the case doctrine to become an instrument of

injustice).

Assuming this

to be

the law,2

we turn

to Bell's

fallback claim that the district court, in its discretion, should

have

entertained

his

challenge

to

the

myriad

of

predicate

decided matter

cannot be

offenses.
Here,
justified.

reopening an

At a minimum,

already

reopening would require

exceptional circumstances

a threshold which,

that the proponent

accomplish one

controlling

authority has

legal

a showing of

in turn, demands

of three things:
changed

show

that

dramatically; proffer

significant new evidence, not

earlier obtainable in the exercise

of due diligence; or convince

the court that a blatant

the prior

uncorrected, result

injustice.

decision will,
See,
___

e.g.,
____

if

Rivera-Martinez,
_______________

931

error in

in a

serious

F.2d

at

151

____________________

2The commentators have noted considerable uncertainty about

whether a district court is always obligated to conform the scope
______
of its inquiry on remand with the appellate court's mandate.
See, e.g., 18 C. Wright, et al., Federal Practice and Procedure
___ ____
______________________________
4478, at 793 & n.15 (1981 & Supp. 1992). We believe that the
weight of logic and authority pushes against so rigid a position,
but we need not decide the issue squarely; even assuming the
existence of
residual discretion, we find
no exceptional

circumstances that would warrant

behind our original mandate.

the

court

below in

peering

(collecting cases); United States v. Rosen, 929 F.2d 839, 842 n.5
_____________
_____

(1st Cir.), cert. denied, 112 S. Ct. 77 (1991); DeJesus, 752 F.2d
_____ ______
_______
at 642;

see also Marin Piazza

___ ____ ____________

(1st Cir.
relevant

1990).
legal

Bell met
authority

challenge to the predicate

self-serving; no hard
could

be

concluded

v. Aponte Roque, 909

____________
none

has

not

benchmarks.

changed.3

The

The

belated

offenses is, at best, conclusory

evidence has
that

of these

F.2d 35, 38

four

been adduced

or

more

of

from which

Bell's

and

it

predicate

convictions were

infirm; and, moreover, no

has been offered

for Bell's failure to assert the challenge in a

more

timely fashion.

district

court

inadvertent
Bell
lawyer

was

confirmed the

time and again.

the challenge

Finally, no manifest injustice looms.

not

oversight on

was represented

credible explanation

faced

with

the part

by able

an

of a

isolated instance

of

beleaguered defendant.

counsel throughout.

district court's

The

findings and

He

and his

conclusion

He passed up numerous opportunities for mounting

he now wishes to press.

Last, but far from least,

there is no real reason to believe that Bell is exempt from armed

career

criminal status.

simply cannot

In

the circumstances of

fault the district

this case, we

court for declining

to reopen

the record.
____________________
3It

is true that

United States v. Paleo, 967 F.2d 7 (1st

_____________
_____
Cir. 1992), a case dealing with a district court's discretion to
consider collateral attacks on prior convictions at sentencing,
postdated Bell's first appeal. As appellant concedes, however,
Paleo was no bolt from the blue. We had suggested on several
_____
previous occasions that such challenges were permissible. See,
___
e.g., United States v. Patrone, 948 F.2d 813, 817 (1st Cir.
____
______________
_______
1991), cert. denied, 112 S. Ct. 2953 (1992); United States v.
_____ ______
_____________
Unger, 915 F.2d 759, 761-62 (1st Cir. 1990), cert. denied, 111 S.
_____
_____ ______
Ct. 1005 (1991); see also Paleo, 967 F.2d at 11 (collecting
___ ____ _____
caselaw from five other circuits holding to like effect).
9

III.
III.

CONCLUSION
CONCLUSION
We need go no

further.

dictates that all litigation must

The law

of the case

doctrine

sometime come to an end.

Arizona v. California, 460 U.S. 605, 619 (1983).

_______
__________

See
___

Here, appellant

has provided us

with no valid reason to depart

from this policy

and overturn the district court's refusal to resuscitate an issue

previously agreed upon and decided in the case.

Affirmed.
Affirmed.
________

10