United States v. Michael Ray Hicks

Intoxilyzer testimony that “in terminolo- gy sample a ‘deficient’ is not invalid sam- subject

ple, merely but one in which the did long enough period

not breathe for a of time deep lung give air to

to reach sufficient Id. reading

most accurate obtainable.” Here, registers any reading. printout no Intoxilyzer

Because the evidence results adequate

lacked an foundation and its relia-

bility highly questionable, it inad- was

missible under Dauberb. The issue is not weight;

one of it is about the essence of

admissibility of scientific evidence. Since the judge

trial was not convinced of the defen- evidence, guilt

dant’s based

I would reverse. America,

UNITED STATES of Appellee, Plaintiff — HICKS, Ray

Michael Defendant— Appellant.

No. 96-3288. Appeals,

United States Court

Tenth Circuit.

June

1199 methamphetamine ute in of 21 violation 841(a)(1) 2;§ pos § and U.S.C. 18 U.S.C. marijuana, session with intent distribute 841(a)(1) § in 21 also violation of U.S.C. and 2; transportation § 18 interstate a U.S.C. of n of stolen vehicle violation 2313; carrying and or a firearm in drug trafficking relation a offense viola 924(c)(1). of The facts un U.S.C. derlying convictions are forth in Hicks’s set published previ opinion addressing our his repeated appeal and need be ous here. Miller, See United States v. (10th Cir.), 1248-49 cert. U.S. -, (1996), 117 S.Ct. L.Ed.2d 339 Holland, by overruled United States v. (10th Cir.), F.3d 1353 U.S. -, (1997). Hicks a of 248 received total sentence convictions; specifically, months for these he concurrent sentences of 188 months received Henry, Timothy Pub- J. Assistant Federal drug for each of two offenses (David Phillips, lic Federal Pub- Defender J. offense, consecutively running plus vehicle briefs), Defender, lic with him on the Office 924(c) 60 months sentence of section Dis- of the Federal Public Defender for the 924(c)(1) (imposing offense. See U.S.C. Wichita, KS, Kansas, appearing for trict of mandatory 5-year sentence run consecu Defendant-Appellant. tively any underlying sentence for an with Hendershot, Randy M. At- Assistant U.S. offense(s)). appealed Hicks his convic (Jackie Williams, Attorney torney N. U.S. sentence. This court affirmed the tions and Watson, and D. Blair Assistant U.S. Attor- possession charges on the convictions brief), ney, of on the Office the United States vehicle but we reversed the section Wichita, KS, Attorney, appearing Plain- 924 conviction and vacated that tiff-Appellee. concluding jury upon that the instruction de McKAY, MURPHY, TACHA, Before fining legally firearm errone “use” was Judges. Circuit States, Bailey light v. United ous 133 L.Ed.2d TACHA, Judge. Circuit Miller, 84 F.3d at 1262-63. We See for a new trial determine remanded INTRODUCTION a firearm in Hicks had “carried” whether Ray Defendant Michael Hicks was 924(c)(1).1 violation of section possession with intent to convicted distrib- Holland, pending, government sup filed was 1. In we held that section cariy” authority suggesting "use or can affirmed plemental conviction for we legally errone- if the "use” instruction was even ous under to the district court for reinstatement-of this case Bailey long jury's so as the verdict light of Hol Hicks’s section 924 conviction necessarily finding all the elements included a However, is limit "[o]ur land. review Holland, "carry” prong. 116 F.3d at See judgments parts that are ed to thereof final holding our decision in 1359. That differed from designated appeal.” Cunico v. in the notice case, original appeal this United States Hicks’s No. Pueblo Dist. School Miller, for a trial in which we remanded new appeal is limited to review Cir. This Miller, "carry” 84 F.3d at on the issue. See ing decision to resentence on the district court's Through a footnote in Holland 1257-58. Appeal (ap drug convictions. See Notice of court, explicitly approved banc we en Therefore, govern resentencing). pealing analysis used in Miller and noted overruled the ap scope of this proposal is outside the others, ment’s case, among have that Hicks's express opinion Although peal. decline analysis. differently out under the new turned Holland, regarding possibility of reinstat- this at this time at 1359 n. 4. While government DISCUSSION

After on the retry the defendant not to decided The mandate rule is “discretion- government’s charge. At the section 924 requires “generally rule” that trial guiding request, court then resentenced appel conformity with the articulated remaining drug offenses and Hicks remand,” subject recognized to certain late apply a two-level en found that it should Moore, exceptions.3 States v. United 2Dl.l(b)(l) the section hancement under (10th Cir.1996). However, “where Guidelines, pos Sentencing .based on Hicks’s specifically not limit the court has during the commission of of a firearm session scope ed of the the drug the offenses. See United States SEN generally expand the resen has discretion (U.S.S.G.) Manual TENCING Guidelines causing tencing beyond the error 2Dl.l(b)(l) (19952) (“If dangerous § a Thus, question Id. the here is the reversal.” firearm) (including possessed weapon a scope of specifically whether we limited the offense], base [during drug [the the increase prevent so the district court as levels.”). by 2 Prior to our va- level] offense remaining resentencing on the convic from conviction, Hicks cation of his section 924 government not to tions after the decided immune from this enhancement. had been 924(c)(1) charge.4 retry section To an the counting” the In order to avoid “double question at the lan swer this we must look factor, weapon specify that the Guidelines guage of the mandate. and sentenced when a defendant is convicted 924(c)(1) using carrying or under section for mandate, judg- In our we stated that “the weapon during drug a the commission of ... is affirmed in and reversed ment have he cannot also his sentence part” remanded “for and ordered the case drug offense enhanced based on the the proceedings further in accordance with the § weapon possession. U.S.S.G. 2K2.4 opinion Judgment, of this court.” United However, commentary (background). once Hicks, May No. 95-3045 Cir. reversed Hicks’s section 924 conviction we opinion itself with concluded sentence, corresponding and vacated the following statement: the government retry the sec- the chose not to carry- conviction for Mr. Hicks’s applying charge, impediment this drug ing a firearm in to a traffick- relation disappeared. the enhancement REVERSED, ing crime is his sentence for Accordingly, agreed the district court to the VACATED, that offense is and the case is government’s request resentencing. REMANDED for a new trial on that of- resentencing, Hicks’s As a result fense. The convictions and sentences are months; new sentence totals 235 without the respects. AFFIRMED all other resentencing, of his section 924 our vacation Miller, 84 F.3d at 1263. him sentence would have left with total language argues Hicks that the of our only sentence of 188 months. The defendant opinion specifically limited the district court’s objects grounds resentencing to the court, power upon the so that district re- violates the of this court. it mandate mand, adjust did not have the jurisdiction We exercise under 28 U.S.C. 3742(a) remaining charges § and affirm. his sentence on the once 1291 and U.S.C. conviction, ing 3. Because we hold that the district court not the defendant’s section did mandate, argument government is free to raise its exceed the we need not bounds our the district court. any exceptions to the examine whether applies mandate rule to the district court's resen- rule, general refer to the version of the 2.As we tencing. guidelines effect at the time of the that was in sentencing. defendant’s See United States argues 4. To the extent that Hicks that the district Cir.1998) Moudy, 132 F.3d 620 n. 1 jurisdiction by allegedly exceeded violat- its 1B1.11(a)). (citing At the time of U.S.S.G. mandate, ing unsupported his contention original sentencing, the 1994 edition of Hicks’s mandate rule is effect, ”[T]he the law of this circuit. guidelines at the manual was in while jurisdictional policy practice, a rule of not a resentencing, the 1995 was in time of his version Moore, 83 F.3d at 1234. sentencing provisions limitation.” effect. The relevant to this appeal are the same in both editions. 924(e)(1) direct that his section conviction section conviction. vacated the disagree. Although light Bailey. we did remand should be vacated We We trial, nothing in the purpose of new agreed and sen- and set aside conviction language indicates that we intended quoted but, case, charge, tence for that as this did ability to court’s resen- limit the district any resentencing on not make reference to the defendant on tence remaining drug Upon re- conviction. pursue not to government choose should mand, the district court resentenced Smith Our failure to the new trial. conviction, applying on his the two-level government that the possibility address 2D1.1(b)(1). under enhancement U.S.S.G. retry mean the defendant does not appealed, asserting re- then that the Smith powerless court was to ad district sentencing violated the mandate rule because just “The fact that sentence. defendant’s to set aside the section 924 convic- order opinion mandate[] Tenth and the Circuit’s precluded reconsidering the court from specificity all of the not forth with did set reject- drug the sentence the count. We conceivably possible permutations might that argument, stating ed that that the “[o]nee following is remand not indication occur charge is sentence on the firearms ‘set aside’ unequivocally barred that enhancement is prohibited from longer the district court is no v. scope the of the mandate.” United considering appropriate enhancements on the (D.Kan.1996), Pelt, 697, F.Supp. 938 706 Van at 859. remaining count.” Id. Cir.1997) (10th (unpub aff'd, F.3d 131 163 — denied, Although the mandate in Hicks’s ease var- decision), cert. table lished - — Smith, -, slightly from the we ies mandate 118 L.Ed.2d S.Ct. (1998). Moore, significant. “a district the difference In As we stated do find court, a following Smith, vacation of following the in- with the we remanded sentence, possesses the inherent discretion Smith’s convic- “[W]e structions: REVERSE expand scope resen- ary power the of the to ... 18 and tion under U.S.C. in the tencing beyond the issue that resulted the REMAND with directions that conviction Moore, of sentence.” reversal and vacation aside.” United and sentence thereon set at F.3d 1235. 83 (10th Smith, 1568 States v. Cir.1996). Webb, only re- v. 98 In Hicks’s case we not opinion in United States Our (10th Cir.1996), cert. vacated F.3d 585 section 924 and versed his conviction U.S. -, 229 137 L.Ed.2d but we also his sentence that (1997), specificity the that we demonstrates his and sentences are stated that “convictions limit district court’s require in order to a Miller, respects.” in all other AFFIRMED authority on In that resentence remand. to However, affirmance of F.3d 1263. our 84 at case, this direct held that after court had we did not the convictions sentences other impose court to sentence ed the district authority court’s to revisit limit the district months, man range “the the of 27-33 within we the section sentences after vacated those from rule district court prohibited date fact ‘affirmed’ [we] “The that 924 conviction. guideline from the departing downward drug trafficking offenses defendant[’s] at 587. The mandate range enunciated.” Id. rejection nothing more than type specific case lacks this in Hicks’s on those sentences.” attacks defendant’s specifically did not Because we direction. Pelt, at F.Supp. 705. 938 Van regard to scope of the remand with limit the least of our is true that at one It was able to sentencing, the district court cases, “Bailey-fix” instructed expand resen- discretion to exercise its vacating the resentence defendant tencing beyond simply the district to Moore, charge. 83 924 on the remain for the section under U.S.S.G. Lang, at F.3d 1235. United States ing drug count. See Cir.1996). Howev 963-64 F.3d deci holding follows our recent here Our er, holdings in Smith demon here and Smith, 116 F.3d in United States sion specific instruction type strate U.S. -, Cir.), prerequisite Lang is not that we issued Like the 139 L.Ed.2d authority to resentence. court’s here, successfully on to the district argued Smith defendant When, appeal, on one or counts of Our silence issue of enhancement on more as “a should not be construed tacit remand conviction are and one multicount reversed Pelt, prohibition to such action.” Van affirmed, is counts are the result more 705; at F.Supp. see also United States v. sentencing package. Be- an “unbundled” (7th Cir.1987) Shue, F.2d interdependent, sentences are cause the previous panel’s failure to (“[Djespite the underlying the reversal convictions explicitly sentencing package vacate some, all, but not of the sentence renders resentencing, we hold sentencing package in car- ineffective authority court had ... district resen- sentencing rying the district court’s out original tence the defendant to effectuate the any one intent as of the sentences intent.”). short, In va- after we the affirmed convictions. cate a count of conviction that of a Thus, [upon ... remand] indictment, “pos- a district court multi-count authority reevaluate ha[s] power” discretionary sesses the inherent sentencing package ... and resentence resentence defendant on the original defendant effectuate the sen- specific impose de novo unless we tencing intent. the court’s limits on to resentence. (citations Shue, omitted); at 1114 Moore, 83 F.3d at Simple commands Binford, see States v. also United “vacate,” aside,” such as “set “affirm” Cir.) (7th 723, (applying pack sentencing 728 sufficiently specific pow- are not to limit that age uphold principles resentencing to after er. on defendant’s successful section 2255 attack holding today comports with Our — denied, conviction), his section 924 cert. this Circuit applying cases in and others the U.S. -, 2530, 117 S.Ct. 138 L.Ed.2d 1029 “sentencing package” cases in doctrine to (1997). similarly empha Other circuits have resentencing volving appeal.5 after a direct importance allowing sized the of district generally permits This doctrine carry in order the courts to resentence out resentence a on convic defendant intent, original sentencing recognizing that remain in getting tions that after he succeeds on resentencing after convictions if one or more convictions he vacated —even “ ‘necessary may vacation count in of one challenge did not which he convictions on punishment that the order to ensure still fits See, e.g., is States v. resentenced. United ” both crime criminal.’ v. United States — Smith, 857, 859, F.3d 116 cert. denied (3d Davis, Cir.) 118, 122 (quoting 112 F.3d -, 256, 118 S.Ct. L.Ed.2d 183 U.S. 139 Pimientar-Redondo, 14), 874 F.2d at cert. Diaz, (1997); 287, United States F.2d v. 834 — denied, -, 224, U.S. 118 139 S.Ct. (2d Shue, Cir.1987); 1114; 290 825 F.2d at (1997); see L.Ed.2d 156 also United v. States Pimienta-Redondo, v. United States 874 Diaz, 287, (2d Cir.1987). F.2d (1st 834 290 Cir.1989). 9, F.2d 14 The Cir Seventh particularly Courts are aware of the need for described the cuit has basis for this doctrine resentencing appeals the context involv of oft-quoted language: mandatory ing five-year consecutive sen a defendant is of more When convicted 924(c)(1) imposed under tence indictment, count of a than one multicount “vacating portion because sen likely of the the district court is to fashion a radically sentencing package changes pack tence the sentencing in which sentences Smith, 531, interdependent. age.” counts individual are States v. United 103 F.3d Cir.1997), Honda, 690, (9th Although we are with 122 5. concerned here resen- States v. F.3d 692 denied, tencing following - U.S. -, 869, vacation 924 con section 118 S.Ct. cert. appeal, on direct courts viction the circuit also (1998). 766 relied 139 L.Ed.2d Courts also have applied package doctrine have closely theory "interdepen related justify resentencing after a successful collateral See, e.g., dence” v. of sentences. United States See, e.g., attack under 18 U.S.C. United Mendoza, 707, (10th Cir.), F.3d 710 cert. 118 Davis, 118, Cir.), (3d 112 F.3d States v. denied, - U.S. -, 122 cert. denied, - U.S. -, 393, 118 S.Ct. 139 L.Ed.2d 224, 118 S.Ct. L.Ed.2d 139 Davis, (1997); 121; 112 307 F.3d at United Smith, 531, (1997); 156 United States v. F.3d 103 Mixon, 900, (11th States v. Cir. 903 Cir.1996), — denied, U.S. -, 533-35 rt. ce (1997); 137 United 117 S.Ct. L.Ed.2d 1061

1203 — denied, during (7th Cir.1996), sessing weapon except cert. U.S. 534 L.Ed.2d, -, 1061 already is S.Ct. defendant sentenced under when Mixon, (1997); 924(c)(1)). v. see also United States resentencing ap A section (11th Cir.1997); States United F.3d plies the section enhancement af Smith, Cir.), cert. ter vacation of a conviction section -, U.S. put nothing more than and sentence “does (1997). L.Ed.2d position they defendants the same Smith, upon the relation- In we touched occupied they have had been convicted rule the' sen- the mandate ship between 924(e) place.” in the first United under doctrine, noting that tencing package (2d Gordils, Cir.) the district court to package doctrine allowed (upholding resentencing after defendants’ after vacation resentence a defendant challenge section 2255 to their sec successful package, pro- the mandate of the unless 924(c)(1) convictions), authority to do so: scribed the lower court’s -, U.S. Sentencing under A sentence place us him a Hicks would have sentencing pack- constitutes Guidelines position by allowing escape him better age which takes into account all weapon in consequences of has con- upon which the defendant been This refuse to commission the offense. is one those counts set victed. When “Thus, despite previous [appellate] do. vacated, the district court aside free panel’s explicitly the sen failure vacate sentencing package de to reconsider tencing package and for resentenc- novo unless ing, we hold that the court had the district the district court’s discretion on limited sentencing pack to reevaluate the provisions of U.S. Sen- remand. age light changed circumstances interdependent- tencing operate Guidelines and resentence the defendant to effectuate from ly. Precluding the district court re- Shue, original sentencing intent.” sentencing package considering the entire at 1114. F.2d one count of conviction is vacated after purposes be inconsistent with the CONCLUSION Sentencing of the U.S. and structure Guidelines. decision AFFIRM district court’s We remaining (citations omitted) Hicks resentence Smith, 116 at F.3d added). apply two-level enhancement under and to (emphasis following § this court’s U.S.S.G. requires sentencing statute The federal 924(e)(1) of his section conviction. vacation consideration, sentencing to take into court things, among other “the nature and circum- McKAY, Judge, dissenting: Circuit for the of the offense” and need stances “to imposed reflect the seriousness sentence Today’s respectfully I deci- must dissent. provide just punish- ... and to the offense respect for represents sion a lack of 3553(a). for 18 U.S.C. ment the offense.” contrary to our finality judgments and is sentencing of the federal purposes The I reasoning jurisprudence on that issue. and if the be frustrated here dis- scheme would Constitution, laws, authority in the find no defen- trict could resentence sentencing guidelines, or Rules of Criminal 2D1.1(b)(1) using enhance- the section dant ignore long for the court to Procedure go unpunished for because he would ment finality judgments law of and well-settled during using weapon commission judicially-created fic- order facilitate Congress nor the drug offense. Neither “bundling.” tion of Sentencing intended such con- Commission Appeals judgment of the The Court go unpunished. duct See for “Mr. Hicks’s conviction this case reads: 5-year mandatory sen- (imposing to a carrying a firearm relation using or carrying weapon during for tence REVERSED, his drug trafficking crime is 2Dl.l(b)(l), offense); §§ U.S.S.G. VACATED, for offense is sentence (requiring commentary (background) 2K2.4 trial on pos- is REMANDED for new the case apply 2-level enhancement court to tencing beyond that offense. The convictions and causing sentences error respects.” Moore, are AFFIRMED in all other the reversal.” United States v. Miller, 1244, United States v. (10th Cir.1996). (10th Cir.), U.S. -, cert. majority holds that (1996), S.Ct. 136 L.Ed.2d 339 overruled after we vacate a count of conviction that is Holland, by United States v. 116 F.3d 1353 indictment, of a multi-count a district (10th Cir.), U.S. -, “possesses discretionary the inherent The man power” to resentence a defendant on the date directed the trial court to take further remaining counts de novo im- unless we proceedings in judg accordance with that pose specific limits on the court’s Judgment, ment. See United States v. Moore, to resentence. 83 F.3d at 1235. Hicks, May No. 95-3045 Cir. Simple “vacate,” commands such as “set nothing ambiguous judg There is about that aside,” sufficiently and “affirm” are not by ment. Unless reviewed on certiorari specific power. to limit that Supreme timely-filed Court or on a motion reconsideration, above-quoted Ante, lan majority saying at 1202. The that we was, guage remains, judgment. a final judgment did not enter a final as to the convictions and sentences that we “AF- ante, Contrary majority opinion, to the see Miller, FIRMED in respects,” all other significant at I find a difference be- F.3d at on direct and to which tween the mandate in United States v. Smith, Cir.1996), petition we denied a rehearing. id. Smith, and the mandate in this case. In highlight at 1244. To the flaws this hold- mandate set aside the firearm conviction and ing, consider this scenario. On im- but did not mention the mediately after the 18 U.S.C. 924 convic- drug conviction. See id. With our state- vacated, and sentence were reversed and ment in this case that Defendant’s “convic- judge the trial dies. The reassigned case is tions and sentences are AFFIRMED in all judge to a exercising well known for her respects,” clearly other unmistakably discretion range at the bottom of the judgment affirmed the final on all the counts really similar cases. Does the court mean to Miller, except the firearm count. 84 F.3d at suggest that the defendant can ask the trial emphasized stating We that fact judge to inappropriate, find the enhancement that both the convictions and sentences were exercise her discretion and reduce the sen- respects.” affirmed “in all other Id. We did tences to the range, bottom of the or recon- say “in respects” most other or “unless government sider whether the has sustained government or the trial court wants to its burden on all factors? change judgments.” those Nor were we si- Such is the majority’s inevitable force of the scope major- lent about the of as the decision, saying, unless the court is without ity ante, opinion maintains. See at 1201-02. any authority suggest judgments are regarding The instruction the other convic- binding government less than on de- tions and specific. sentences was direct and fendants, judgment that our was final as to “AFFIRMED in all other respects” meant defendant, but government. not as to the those convictions and sentences were There body is sound reason for the of law final and should stand as rendered concerning finality judgments. As the district court before we reviewed them. Mil- Supreme explained, Court “‘Inroads on the ler, 84 F.3d at 1263. The distinct treatment concept finality tend to undermine confi- of, to, language relating the firearm integrity dence in the procedures’ of our count versus the other further rein- inevitably delay impair orderly ad- finality judgment. forces the Our final justice.” ministration of Custis v. United upon appeal determination that we con- States, 485, 497, 511 U.S. 114 S.Ct. curred the correctness of those convictions (1994) (quoting L.Ed.2d 517 United and sentences. This is not a ease “where the Addonizio, n. court has not limited (1979)). remand,” scope allowing the dis- There is no expand trict court “discretion compelling the resen- concept reason to undermine the majority’s does in finality as the decision “bundling” and in of the fiction called favor prison time on some additional

order stack will incarcerated

for a man who years. 15of

better and remand with di-

I would reverse new and enhanced

rections to vacate this

sentence, previ- and reinstate appeal by

ously and made final on entered judgment.

this court’s Horwitz, Randolph Bragg,

O. Horwitz & (Vincent Associates, Chicago, C. Illinois Todd, Lakewood, Colorado, with him on the briefs), Appellant. (James Judge A. Gerald J. Van Gemert LADICK, Appellant, Andrew Plaintiff — brief), with him on J. Ge- Gerald Van P.C., Irvine, mert, California, Appellees. GEMERT; Law Offices of

Gerald J. VAN Gemert, professional Gerald J. Van ANDERSON, EBEL, and Before corporation, Appellees. Defendants — HENRY, Judges. Circuit No. 97-1147. ANDERSON, H. Circuit STEPHEN Appeals, United States Court Judge. Tenth Circuit. question presented in this June whether an owed to condomini assessment qualifies

um association as a “debt” within meaning of the Fair Debt Collection (FDCPA), §§ Act Practices 1692- by our 1692o. Guided recent decision Riddle, 143 Cir. Snow v. 1998), un interprets the term “debt” which FDCPA, it We der the we hold that does. contrary reverse the district court’s therefore further judgment proceed and remand for ings.

BACKGROUND brought in fed- this action Andrew Ladick against J. Van Ge- eral district court Gerald Van and the Law Offices of Gerald J. mert (“Mr. Gemert”), seeking declar- Gemert Van statutory damages for atory judgment and Mr. al- violations the FDCPA. Ladick Gemert, leged attorney, Mr. sent Van of a condo- him a letter behalf California demanding payment a minium association Ac- past-due fee. condominium assessment complaint, letter violated cording to the give it a “vali- the FDCPA in that failed expressly did not disclose dation notice” and attempting to col- Mr. Van Gemert any information obtained lect a debt and that

Case Details

Case Name: United States v. Michael Ray Hicks

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jun 9, 1998

Citation: 146 F.3d 1198

Docket Number: 96-3288

Court Abbreviation: 10th Cir.