UNITED STATES OF AMERICA, Plаintiff-Appellee, v. DANIEL JAMES STANFORD, Defendant-Appellant.
No. 17-30285
United States Court of Appeals, Fifth Circuit
February 19, 2018
Lyle W. Cayce, Clerk
Before STEWART, Chief Judge, and JOLLY and OWEN, Circuit Judges.
This criminal appeal returns to this court after Stanford was resentenced following this court‘s decision in United States v. Stanford remanding the case “for any other proceedings as needed.”1 Back before this court on appeal, Stanford, in addition to alleging various errors in the district court‘s redetermination of his guideline range, argues that the district court erred in denying his request for in camera review of various co-conspirator witness reports and requests that this court reassign the case to a different district court judge. Because the district court did not commit reversible error, we AFFIRM. Stanford‘s request for reassignment of the case to a different district court judge is DENIED.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY2
On September 4, 2012, Stanford and eight co-conspirators were indicted for their then-alleged involvement in a conspiracy to distribute a controlled substance analogue (“CSA“), in violаtion of
As relevant here, Stanford was charged with: (1) conspiracy to distribute a CSA (“Count One“); conspiracy to introduce and cause to be introduced misbranded drugs into interstate commerce (“Count Two“); and conspiracy to engage in money laundering (“Count Three“) (collectively, “Counts One, Two, and Three“). At the time of his indictment, Stanford was a practicing criminal defense lawyer in Lafayette, Louisiana. The product in question, “Mr. Miyagi,” is a synthetic cannabinoid, and contained a Schedule I CSA
The district court concluded that such knowledge was not required, but acknowledged that the question was the subject of a circuit split. The district court agreed to send the issue to the jury as an interrogatory and permitted Stanford to put on evidence addressing his knowledge that AM-2201 was a CSA. In fact, the district court‘s language was more emphatic, stating that the “question of knowledge needs to be addressed in th[e] trial.” After a 10-day jury trial, on August 20, 2014, the jury found Stanford guilty on Counts One, Two, and Three. In a special interrogatory, the jury concluded that Stanford knew that AM-2201 was a CSA. On January 15, 2015, the district court sentenced Stanford to 121 months’ imprisonment, grouping Counts One and Two and applying the base offense level calculated for Count One as the underlying offense for purposes of calculating the base offense level for Count Three. The sentences on Count One and Count Three ran concurrently. Stanford timely appealed.
In Stanford I, Stanford challenged his convictions on Count One and Count Three. He also argued that the Government ran afoul of Brady v. Maryland, 373 U.S. 83 (1963) by failing to turn over witness reports of co-defendants Dan Francis, Boyd Barrow, Drew Green, and Joshua Espinoza. Applying the Supreme Court‘s intervening ruling in McFadden v. United States, the Stanford I panel agreed with Stanford‘s challenge to his conviction on Count One. See — U.S. —, 135 S. Ct. 2298 (2015). The McFadden decision resolved the knowledge dispute in Stanford‘s favor, holding that a defendant‘s knowledge that a CSA was indeed a CSA is an element necessary to secure a conviction under
On remand, the district court, despite feeling constrained from doing so in light of Stanford I‘s mandate, resentenced Stanford on the remaining convictions—namely, Count Two and Count Three. The district court imposed the same sentence of 121 months’ imprisonment on Count Three, arriving at the base offense level for Count Three through the calculation of the guideline range applicable to Count Two. The district court also reiterated its Brady ruling on remand, summarily rejecting Stanford‘s request for the same witness reports. Stanford timely appealed these rulings. In addition, Stanford requests that this panel reassign the case to a different district court judge.
II. DISCUSSION
The parties understandably spend considerable time on appeal briefing whether
A. Application of Sentencing Guidelines at Resentencing
This court reviews a district court‘s interpretation and application of the Guidelines, including any cross references and selection of the applicable sentencing guideline, de novo. See United States v. Grant, 850 F.3d 209, 219 (5th Cir. 2017) (citation omitted); United States v. Johnston, 559 F.3d 292, 294 (5th Cir. 2009) (citation omitted). Where a party fails to present an argument to the district court, however, this court reviews the sentencing objection for plain error. See United States v. Hughes, 726 F.3d 656, 659 (5th Cir. 2013). “If procedural error occurs, harmless error review applies.” United States v. Clay, 787 F.3d 328, 330 (5th Cir. 2015) (citation omitted). Commentary in the Guidelines Manual that interprets or explains a guideline “is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plаinly erroneous reading of, that guideline.” United States v. Diaz-Corado, 648 F.3d 290, 292 (5th Cir. 2011).
Stanford argues that the district court committed reversible error in its interpretation and application of the Guidelines for Count Two and, by extension, Count Three. Specifically, Stanford argues that the district court erred by: (1) failing to select the applicable guideline in the manner prescribed by the Guidelines; and (2) applying cross reference
i. Selection of Applicable Guideline
We first address Stanford‘s argument that the district court committed reversible error when purportedly bypassing selection of the most appropriate guideline in the manner instructed by
The steps for determining the applicable guideline is not for this court to decide. That method is clearly set forth in the Guidelines. As this court recently reminded in Grant, the selection of the applicable guideline begins with reference to, first, the count of conviction, and, then, the Statutory Index.4 See 850 F.3d at 209. The Statutory Index of the Guidelines provides the
applicable offense guidelines for various criminal statutes. See
Stanford contends that the district court failed to follow the directions of
For the reasons stated below, we agree with the Government that
Count Two of the indictment charges conspiracy to introduce misbranded drugs into interstate commerce, in violation of
The district court acknowledged many of the arguments Stanford advances on appeal and concluded that
Although the selection between
Count Two of the Indictment alleges, in relevant part, that the FDA, in its authority as the regulator of drugs, as that term is defined by
The object of the conspiracy, Count Two of the Indictment goes on to allege, was to “distribute ... to consumers and other
Upon this backdrop, the court is tasked with solving one principal question: what offense guideline accounts for the offense conduct charged in Count Two?
A review of the offense guidelines themselves are not dispositive, but
The argument that Stanford advances on this issue essentially calls on this court to establish a pеr se rule mandating that district courts select
for violations of
Taking into account all the allegations of Count Two, the offense conduct charged in the indictmеnt for Count Two demonstrates
Although Stanford waived the argument by raising it for the first time in his reply brief, the court rejects his argument that the alleged overt acts in Count Two were not relevant to the selection of the applicable guideline. See United States v. Aguirre-Villa, 460 F.3d 681, 683 n.2 (5th Cir. 2006) (“[T]his Court will not ordinarily consider arguments raised for the first time in a reply brief.“). The overt acts set forth in the indictment for Count Two were relevant to his offense of conviction, and accordingly relevant to the selection of the applicable guideline for that offense. Indeed, the district court instructed as much on the issue, differentiating the relevance of overt acts for the conviction on Count Two from the now reversed Count One conviction as well as the Count Three Conviction.8 There is a meaningful distinction between the general federal conspiracy statute,
Stanford advances various appellate decisions that he argues compel a different result. Although they both address guilty pleas rather than, as relevant here, jury convictions, Ihenacho and Arlen deserve individualized treatment.
In Ihenacho, the First Circuit affirmed the district court‘s selection of the fraud guideline in a case that alleged violations of both the FDCA and Contrоlled Substances Act based on the distribution of “both controlled substances and non-controlled substances.” 716 F.3d at 270 (emphasis in original). The First Circuit explained that the indictment alleged an “intent to defraud and mislead,” and rejected defendant‘s suggestion that the district court “should have ignored the indictment and instead focused on his version of the facts of the case.” Id. at 276 (quotation marks omitted). That decision does not provide that the fraud guideline should be used whenever the intent to defraud and mislead is charged. Rather, the driving force of the court‘s decision in Ihenacho was the rejection of the defendant‘s
This circuit‘s decision in Arlen is less helpful to Stanford‘s case insofar as it is held out as foreclosing application of
Notably, the decision in Arlen predated the inclusion of the cross reference in
commentary of the guideline, directing that “[i]f the offense involved theft, fraud, bribery, revealing trade secrets, or destruction of property, apply the guideline applicable to the underlying conduct, rather than this guideline.”
The holdings in Ihenacho and Arlen do not establish a per se rule. Nor could they do so without running afoul of the general principles guiding the selection of the applicable guideline. That is, consideration of the applicable guidelines listed in the Statutory Index followed by an individualized assessment of the offense conduct charged in the count of conviction.
We are mindful of the modified real-offense balance struck by the Sentencing Commission in adopting the tiered process of selecting the applicable guideline through conduct charged and tried for the statute of conviction and the consideration of broader conduct later when, among other things, applying cross references, Chapter Three adjustments, and Chapter Four‘s computation of a defendant‘s criminal history category. See Julie R. O‘Sullivan, In Defense of the U.S. Sentencing Guidelines’ Modified Real-Offense System, 91 NW. U. L. REV. 1342, 1354-56 (1997) (offering compelling analysis of the Commission‘s efforts to refashion the Guidelines to address concerns of proponents of the opposing regimes). Count Two of the Indictment does not expressly exclude either offense guideline. There is an allegation of the intent to defraud—
ii. Selection of Cross Reference
Stanford next argues that, even assuming the district court was correct in selecting
When the court is called to interpret the Guidelines, the typical rules of statutory interpretation are utilized. United States v. Koss, 812 F.3d 460, 473 (5th Cir. 2016). Starting with the text of the relevant guideline or cross reference, the court uses “a plain-meaning approach” to interpret the Guidelines. United States v. Mendez-Villa, 346 F.3d 568, 570 (5th Cir. 2003) (per curiam). If the language is unambiguous, and does not lead to an “absurd result,” the court‘s inquiry begins and ends with the plain meaning of that language. Koss, 812 F.3d at 473. Nevertheless, the court “do[es] not disregard ‘the cardinal rule that a statute is to be read as a whole, ... since the meaning of statutory language, plain or not, depends on context.‘” United States v. Hoang, 636 F.3d 677, 681 (5th Cir. 2011) (quoting King v. St. Vincent‘s Hosp., 502 U.S. 215, 221 (1991)).
The cross reference at issue provides:
If the offense was committed in furtherance of, or to conceal, an offense covered by another offense guideline, apply that other offense guideline if the resulting offense level is grеater than that determined above.
Interpreting the cross reference, the district court turned to the Guidelines’ definition of “offense” embodied in Application Note 1(H) of § 1B1.1. The Guidelines define “offense” as “the offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct).” See
To the issue of the necessity of a separate “offense of conviction,” there appears to be little dispute that the first offense—referenced in “if the offense“—necessarily refers to an offense of conviction by operation of the “mechanical process” employed by the Guidelines. See United States v. Boney, 769 F.3d 153, 158 (3d Cir. 2014). Cf. United States v. Kaluza, 780 F.3d 647, 663 n.62 (5th Cir. 2015) (“In reading a statute, we must not look merely to a particular clause, but consider in connection with it the whole statute.“). Stated differently, the offense referenced in “in the offense,” by
Stanford reads the cross reference as requiring two separate offenses of conviction—that is, the cross reference only applies “[i]f the offense [of conviction] was committed in furtherance of or to conceal, an offense [of conviction] covered” elsewhere in the Guidelines. Although Application Note 1 explains that all definitions are accorded “general applicability (except to the
extent expressly modified in respect to a particular guideline or policy statement),” the definition of “offense” comes with the proviso that it applies “unless a different meaning is specified or is otherwise clear from the context.”
The interpretation of the second instance of “offense” that Stanford advances conflicts with the more contextually relevant
Defining the second instance of offense as it is used in
This context-specific distinction comports with
Although the issue of whether
In United States v. Williams, this circuit addressed an argument similar to one advanced by Stanford in the context of cross reference
If the offense was committed for the purpose of facilitating the commission of another criminal offense, apply the offense guideline applicable to a conspiracy to commit that other offense, if the resulting offense level is greater than that determined above.
The defendant in Williams, after pleading guilty to extortion affecting interstate commerce for his agreement to escort shipments of cocaine for cash payment, was sentenced under
account the conspiracy to commit drug trafficking. Id. The defendant argued that the cross reference only applies when the defendant has been convicted of a conspiracy, and that he could nоt conspire with an undercover agent. Id. at 939. The court explained that it was not relevant whether there was actually a conspiracy to commit the other offense, “but rather that the purpose of the [extortion] offense was to facilitate the commission of another criminal offense.” Id. at 939-40. The court observed that it was sufficient that the defendant admitted at his sentencing hearing that he understood the purpose of his services to be to protect a shipment of cocaine. Id. at 939-40. Similarly, in United States v. Solomon, the Third Circuit, addressing whether “another criminal offense” required a charge or conviction, concluded that the “the Guidelines [did not] require ... that [the defendant] actually facilitated another criminal offense.” 766 F.3d 360, 364-65 (3d Cir. 2014) (emphasis in original). The “key word” to interpreting the cross reference, the panel explained, was “‘purpose‘—i.e., the reason the defendant accepted the payments.” Id. at 367 (emphasis in original).
The reasoning advanced by the panels in Williams and Solomon is compelling on this issue. In both instances, faced with reference to another criminal offense, the panels did not conclude that the generally applicable definition required that “another criminal offense” meant a criminal offense of conviction. In other words, the court concluded that the predicate for applying the cross reference was that the offense of conviction was “committed for the purpose of facilitating” another offense irrespective of a jury conviction on the other offense.
Extrapolating from that reasoning, the predicate for application of
regardless of whether there is a jury conviction on the other offense. These interpretations of the Guidelines comport with the context that the decision of a cross reference, unless explicitly instructed otherwise, is made on the basis of relevant conduct principles.
In light of the foregoing, the district court‘s selection of cross reference
***
In sum, the district court‘s resentencing of Stanford is affirmed. Because we find no reversible error in the calculation of Stanford‘s guideline for Count Two, we, by extension, affirm the sentence on Count Three as well.
B. Denial of In Camera Review
Stanford next argues that this court should remand the case with instructions that the district court conduct in camera review of certain co-conspirator witness statements because those statements contain exculpatory Brady material concerning his knowledge that AM-2201 was a CSA.
To overcome Stanford I‘s denial of his Brady claim for the same witness reports, Stanford argues that the issue of knowledge was made newly relevant by the decision in Stanford I and as such, he was not foreclosed from requesting the witness reports based on the argument that these reports might include
exculpatory information related to his knowledge that AM-2201 was a CSA. The Government contends that Stanford is precluded from re-litigating Stanford I‘s holding that he failed to establish a colorable Brady claim. We agree with the Government and hold that Stanford was not entitled to renew his Brady claim on remand.
When a case is remanded for resentencing, district courts in this circuit are not permitted to provide parties “a second bite at the apple” by holding a de novo resentencing as a matter of course. United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998) (“Marmolejo II“). Rather, courts are confined to addressing “discrete, particular issues directed by the court,” or those that “aris[e] out of” or become “newly relevant” because of the appeal. Id. at 530, 531 (citation omitted); United States v. Lee, 358 F.3d 315, 325 (5th Cir. 2004) (“Lee II“). In that vein, this circuit instructs district courts to faithfully apply the “waiver” doctrine by discerning whether an issue raised after a remand is one that could have been, but was not, raised during the original appeal. See Med. Ctr. Pharm. v. Holder, 634 F.3d 830, 834 (5th Cir. 2011) (explaining that “[law-of-the-case] rule ... is qualified by the waiver doctrine, which holds that an issue that could have been but was not raised on appeal is forfeited and may not be revisited by the district court on remand.“). The doctrine, aimed at addressing a “party‘s inaction[,]. ... promоtes procedural efficiency and prevents the bizarre result that a party who has chosen not to argue a point on a first appeal should stand better as regards the law of the case than one who had argued and lost.” Lindquist v. City of Pasadena, 669 F.3d 225, 239-40 (5th Cir. 2012) (internal quotation marks omitted). The district court‘s reasoning on remand, namely, not relying on the waiver doctrine in ruling on the request for in camera review, does not preclude this court‘s consideration of the waiver doctrine. See Art Midwest, Inc. v. Clapper, 805 F.3d 611, 614 (5th Cir. 2015)
(recognizing that district court‘s stated rationale does not “limit this court‘s ability to consider waiver“).
In keeping with his counsel‘s аrgument at the original appeal that the case was a “trial by ambush,” Stanford argued to the Stanford I panel that he did not have any of the DEA witness reports or rough notes of the interviews with these witnesses to use to impeach them. According to Stanford, these documents would have demonstrated a shifting story by his co-defendants and provided him with an opportunity to impeach their credibility as well as the veracity of their testimony.
Addressing these arguments, the Stanford I panel wrote extensively on the Brady issue in its published decision, dedicating five paragraphs to the issue and concluding that Stanford misapprehended this circuit‘s Brady jurisprudence. Stanford I, 823 F.3d at 841-42. The panel observed that Stanford did not “appear to have requested in camera review of specific documents for Brady purposes.” Id. at 842. Armed with the court‘s opinion and a reversal on Count One, Stanford renewed his request for Brady material on remand. In Stanford‘s reply before the district court, he requested that the district court conduct an in camera review of the documents. The district court issued an order rejecting Stanford‘s request.
The law-of-the-case doctrine and its related waiver doctrine leads us to conclude that Stanford‘s Brady claim is forfeited because the issue was germane to the case prior to and during the appeal and he failed to raise it during that time.
Stanford, citing to Lee II‘s “newly relevant” language, argues that “knowledge did not become a material issue until remand.” Lee II offers little assistance to the Stanford‘s revival of this Brady claim. In Lee II, the court concluded that the waiver doctrine did not preclude consideration of an upward departure that “was not appealable” as a matter of law during the original appeal. 358 F.3d at 324 (“We find that the record in this case amply justifies the government‘s earlier silence quite simply because the enhancement at issue was not appealable in the initial appeal.“). Quite differently, Stanford‘s Brady claim on the basis of his knowledge that AM-2201 was a CSA was both legally permissible and relevant to the original district court proceedings and appeal.
To be sure, Stanford I did clarify the precise relation that knowledge had to Count One. Nonetheless, knowledge was the star issue in the district court proceedings and on appeal, leading to a reversal in part.11 The dispute concerning whether Stanford knew AM-2201 was a CSA was not ancillary to the original district court proceedings and appeal. The parties briefed the issue in great detail. Indeed, Stanford I detailed the district court‘s permission of knowledge-related evidence at trial despite the district court‘s conclusion that it was not an element of the Count One charge.12 See Stanford I, 823 F.3d at 826-27. As the foregoing demonstrates, Stanford had ample reason to make a Brady
With the knowledge issue resolved successfully and the Brady claim resolved unsuccessfully by this court in Stanford I, Stanford essentially attempts to revive the latter using the former. Stanford, at least, had incentive
to argue the knowledge issue with respect to his Brady claim on the basis of impeachment value. Stanford essentially argues that analysis by this court adding layers of argument to an issue on appeal, opens that issue up for review again on remand. That rationale does not comport with this circuit‘s waiver doctrine. See, e.g., Serna v. Law Office of Joseph Onwuteaka, PC., 614 F. App‘x 146, 156 (5th Cir. 2015) (per curiam) (unpublished) (explaining that “new legal argument” on remand concerning an issuе that was previously decided was “plainly foreclosed by the law-of-the-case doctrine and the related doctrine of waiver“).
As this court has explained, “[i]n short, nothing prevented ... [Stanford], in [his] appeal in [Stanford] I, from arguing that the” Government‘s failure to turn over DEA witness reports would be necessary to potentially impeach witness testimony concerning his knowledge that AM-2201 was a CSA. Lindquist, 669 F.3d at 240. Stated plainly, Stanford could have brought, and had sufficient incentive to raise, a Brady claim at the district court and on appeal prior to remand on the basis of their purported value to his knowledge that AM-2201 was a CSA.13 Id. at 239-40.
C. Reassignment
Primarily pointing to statements made during trial concerning the handling of exhibits, Stanford argues that the district court has a set opinion of him that renders the district court incapable of rendering an unbiased opinion going forward.
An “extraordinary” and “rarеly invoked” power, reassignment to a different judge on remand turns on more than intemperate remarks. See Johnson v. Sawyer, 120 F.3d 1307, 1333 (5th Cir. 1997). “[R]eassignments should be made infrequently and with the greatest reluctance.” United States v. Winters, 174 F.3d 478, 487 (5th Cir. 1999) (quotation marks and citation omitted). Because we conclude that this court‘s supervisory power to reassign a matter is coterminous with the necessity of a remand, we need not reach the issue. See
Even if we did so, the record in this case does not support reassignment. The standard for reassignment presents a high hurdle—a hurdle that Stanford fails to clear. Stanford‘s decision to proceed pro se at trial placed him at the center of ordinary case management by a trial court judge and that case management is not sufficient to warrant reassignment. See, e.g., Gomez v. St. Jude Med. Daig Div. Inc., 442 F.3d 919, 939 (5th Cir. 2006) (noting that district court judge‘s “annoy[ance] with counsel at times ... [that was] not without rеason” failed to justify reassignment on remand“).
Viewed in its entirety, Stanford‘s claim for reassignment centers on the district court‘s rulings against him at trial, sentencing, and resentencing. The most noteworthy statement by the district court came during its ruling on an obstruction of justice enhancement at Stanford‘s sentencing
III. CONCLUSION
For the foregoing reasons, Stanford‘s sentence on Counts Two and Three and the district court‘s denial of Stanford‘s Brady claim without conducting in camera review is AFFIRMED. Stanford‘s request for reassignment to a different district court judge is DENIED.
Notes
At oral argument, Stanford‘s counsel agreed that any McFadden error affects only Count One. Thus, the reversal on that court [sic] has no effect on the sentence related to any other counts.
Stanford I, 823 F.3d at 843 n.35.