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United States v. Dahda

United States District Court, D. Kansas

May 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
LOS ROVELL DAHDA, Defendants.

          MEMORANDUM AND ORDER

          Kathryn H. Vratil, United States District Judge.

         On September 30, 2015, the Court sentenced defendant to 189 months in prison and imposed a fine of $16, 985, 250. See Judgment In A Criminal Case (Doc. #2076). On April 4, 2017, the Tenth Circuit affirmed defendant's convictions and the sentence of imprisonment, but reversed and remanded so that this Court could reconsider the amount of the fine. United States v. Los Dahda, 853 F.3d 1101, 1118 (10th Cir. 2017), aff'd, 138 S.Ct. 1491 (2018). Because defendant's initial sentencing memoranda raised issues which went beyond the amount of the fine, the Court directed the parties to file briefing on the scope of the remand including whether any exception to the mandate rule applies. See Order (Doc. #2583) filed March 8, 2019. This matter is before the Court on the parties' memoranda regarding the scope of the remand. See [Los Dahda's] Sentencing Memorandum Regarding Resentencing Following Remand (Doc. #2544) filed December 11, 2018; Los Dahda's pro se Post-Remand Sentencing Memorandum (Doc. #2546) filed December 11, 2018; Government's Response To Defendant's Sentencing Memoranda On The Limited Issue Of The Scope Of The Remand (Doc. #2589) filed March 29, 2019; Defendant's Reply To Government's Response On His Sentencing Memorandum (Doc. #2594) filed April 11, 2019.

         As noted, the Tenth Circuit mandate was limited to the amount of the fine. Defendant argues that in addition to recalculating the fine, the Court should (1) recalculate the drug quantity attributable to him in light of the Tenth Circuit's ruling in his brother's case, United States v. Roosevelt Dahda, 852 F.3d 1282 (10th Cir. 2017), aff'd, 138 S.Ct. 1491 (2018), and (2) resentence him based on the five-year statutory maximum for less than 50 grams of marijuana, 21 U.S.C. § 841(b)(1)(D). See [Los Dahda's] Sentencing Memorandum Regarding Resentencing Following Remand (Doc. #2544) at 1-2, 9-11 and Los Dahda's pro se Post-Remand Sentencing Memorandum (Doc. #2546) at 3-6.

         The law of the case doctrine posits that when a court decides a rule of law, that decision “should continue to govern the same issues in subsequent stages in the same case.” Arizona v. California, 460 U.S. 605, 618 (1983); see United States v. West, 646 F.3d 745, 748 (10th Cir. 2011) (law of case doctrine precludes relitigation of legal ruling in case once it has been decided). The doctrine seeks to preserve the finality of judgments, prevent continued re-argument of issues already decided, and preserve scarce judicial resources. Procter & Gamble Co. v. Haugen, 317 F.3d 1121, 1132-33 (10th Cir. 2003). The doctrine has particular relevance following remand from a court of appeals. Huffman v. Saul Holdings Ltd. P'ship, 262 F.3d 1128, 1132 (10th Cir. 2001). “[W]hen a case is appealed and remanded, the decision of the appellate court establishes the law of the case and ordinarily will be followed by both the trial court on remand and the appellate court in any subsequent appeal.” Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995).

         An important corollary to the law of the case doctrine, known as the “mandate rule, ” requires a district court to comply strictly with the mandate rendered by the reviewing court. See Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah, 114 F.3d 1513, 1520-21 (10th Cir. 1997). Where the appellate court does not specifically limit the scope of the remand, a district court generally has discretion to expand resentencing beyond the specific sentencing error underlying the reversal. United States v. Moore, 83 F.3d 1231, 1235 (10th Cir. 1996) (following remand from appellate court for resentencing, district court “possesses the inherent discretionary power to expand the scope of the resentencing beyond the issue that resulted in the reversal and vacation of sentence”). The mandate rule is a discretion-guiding rule of policy and practice that is subject to exception and some flexibility in exceptional circumstances. Id. at 1234-35 (citing United States v. Bell, 988 F.2d 247, 251 (1st Cir. 1993)). Examples of “exceptional circumstances” which warrant an exception to the mandate rule include (1) a dramatic change in controlling legal authority; (2) significant new evidence that was not obtainable earlier through due diligence but has since come to light; or (3) a blatant error from the prior sentencing decision that would result in serious injustice if uncorrected. Id. (citing United States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993)).

         I. Recalculation Of Drug Quantity

         At sentencing, the Court attributed a total of 907 kilograms of marijuana to Los Dahda. Presentence Investigation Report (Doc. #2049) filed September 23, 2015, ¶ 414. The Court found a base offense level of 28 because the offense involved at least 700 kilograms but less than 1, 000 kilograms of marijuana. U.S.S.G. § 2D1.1(c)(6); see Presentence Investigation Report (Doc. #2049), ¶ 415. The Court added two levels because defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance, U.S.S.G. § 2D1.1(b)(12), and added four levels because he was an organizer or leader of criminal activity involving five or more participants, U.S.S.G. § 3B1.1(a). Defendant's total offense level was 34, with a criminal history category II, which resulted in a guideline range of 168 to 210 months. See Presentence Investigation Report (Doc. #2049), ¶ 467. The Court imposed a mid-range sentence of 189 months in prison.

         As to Los Dahda, the Tenth Circuit affirmed his convictions and his sentence of 189 months, but reversed the imposition of the fine amount and remanded for reconsideration on that issue. Los Dahda, 853 F.3d at 1118. As to Roosevelt Dahda, the Tenth Circuit affirmed his convictions and forfeiture order, but remanded for resentencing based on the calculation of the amount of marijuana attributable to him. Roosevelt Dahda, 852 F.3d at 1298. In the case of Roosevelt Dahda, the Tenth Circuit found that the government presented insufficient evidence to establish that each of the 20 shipped pallets contained 80 pounds of marijuana. Id. at 1294.

         Los Dahda asks the Court to recalculate the drug quantity attributable to him in light of the Tenth Circuit opinion in Roosevelt Dahda's appeal. [Los Dahda's] Sentencing Memorandum Regarding Resentencing Following Remand (Doc. #2544) at 1-2; Los Dahda's pro se Post-Remand Sentencing Memorandum (Doc. #2546) at 3-4. The government concedes that in calculating drug quantity for both defendants, the Court accepted the same 80-pound per pallet estimate based on the same evidence.[1] Government's Response To Defendant's Sentencing Memoranda On The Limited Issue Of The Scope Of The Remand (Doc. #2589) at 5. As to Roosevelt Dahda, on remand, the government has agreed to a more conservative estimate. See Government's Memorandum On Drug Quantity Evidence [As To Roosevelt Dahda] (Doc. #2527) filed October 3, 2018, at 3, 11 (government seeks to attribute 558 kilograms of marijuana to Roosevelt instead of original 725.7 kilograms).

         The government raises the mandate rule, but it offers no specific reason why the rule should be applied to bar resentencing of Los Dahda based on the same revised drug estimate applied to Roosevelt Dahda. See Government's Response To Defendant's Sentencing Memoranda On The Limited Issue Of The Scope Of The Remand (Doc. #2589) at 5 (“Given that the mandate rule is discretionary, the government defers to this Court's determination of whether ‘exceptional circumstances' exist to deviate from the mandate on this limited issue based on the interests of justice.”). Fundamental fairness counsels that at resentencing, Los Dahda should not be bound by the government's 80-pound per pallet estimate which the Tenth Circuit found erroneous in Roosevelt Dahda's case. Accordingly, the Court finds that exceptional circumstances exist to recalculate the drug quantity attributable to Los Dahda and resentence him consistent with the Tenth Circuit ruling in Roosevelt Dahda's case.[2] See Moore, 83 F.3d at 1235 (district court has discretion to determine scope and parameters of resentencing based on “common sense and efficiency”).

         II. Default Provision Under Section 841 If Jury Does Not Determine Quantity

         Los Dahda argues that because a jury did not determine drug quantity, the Court should apply the default provision of 21 U.S.C. § 841(b)(1)(D), which includes no mandatory minimum and a maximum of 60 months in prison. On direct appeal, the Tenth Circuit rejected this same argument. It reasoned as follows:

Los was found guilty on count 1, which charged a conspiracy involving 1, 000 kilograms or more of marijuana. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii), 846, 856. For this count, Los obtained a sentence of 189 months' imprisonment. He contends that this sentence violates the Constitution because the jury did not specifically find the marijuana quantity involved in the conspiracy.
“We review the legality of an appellant's sentence de novo.” United States v. Jones, 235 F.3d ...

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