United States v. McFalls, 2012 U.S. App. LEXIS 6419

McFalls pled guilty to bank robbery and a firearms offense after prior state convictions.
The district court initially held McFalls was a career offender under USSG § 4B1.1, producing a sentence of 188 months for Count 1 and 84 months for Count 2, to run concurrently/consecutively with the state sentence as arranged.
This Court previously remanded to determine whether McFalls’ prior convictions were crimes of violence under Shepard v. United States, yielding a limited focus on the career-offender question.
On remand, Judge Haynes replaced the career-offender designation (guideline range for Count 1 became 77–96 months) and imposed a 77-month sentence for Count 1, with Count 2 remaining at 84 months and mandatory minimums applying.
McFalls contends the remand was limited and that Haynes’ consecutive-to-state-sentence ruling exceeds the remand scope, producing a harsher overall sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the remand general or limited for resentencing?	McFalls argues the remand was limited to Shepard-based career-offender determination.	Government contends the remand was general, allowing full resentencing.	Remand was general; district court could resentence and alter concurrent/consecutive sequencing.
Did the remand wipe the law-of-the-case effect of the original concurrent sentence?	Law-of-the-case bound the district court to original concurrent ruling.	General remand nullifies law-of-the-case restraints.	Law of the case does not apply after a general remand.
Did the Government waive its right to challenge the resentencing by not objecting earlier?	Waiver bars raising the issue now.	Waiver does not apply because Government seeks affirmation of the re-sentence, not to relitigate the full case.	Waiver does not apply; Government is not barred from challenging the resentencing.
Did due process bar a harsher sentence after appeal?	Resentencing by a different judge could vindicate a punitive effect.	Different judge removes vindictive motive presumption; no actual vindictiveness shown.	No due-process violation; no evidence of actual vindictiveness.
Did the defense properly bear the risk of remand producing a harsher sentence?	McFalls implicitly assumed remand could yield a different, possibly harsher outcome.		Acknowledges calculated risk; decision affirmed under general remand authority.

Campbell v. United States, 168 F.3d 263 (6th Cir. 1999) (limited vs general remands; required explicit framework language)
Gibbs v. United States, 626 F.3d 344 (6th Cir. 2010) (presumption of general remand; framework for scope of review)
Moore II (United States v. Moore), 131 F.3d 595 (6th Cir. 1997) (de novo resentencing permitted under general remand)
Moored v. United States, 38 F.3d 1419 (6th Cir. 1994) (law-of-the-case not binding after general remand)
Pepper v. United States, 131 S. Ct. 1229 (Supreme Court 2011) (courts preserve sentencing calculus; de novo review in remand context)