Eugene R. Rosnow, Harry E. Carlson, Melford H. Haugen, Leland F. Erickson, Roger W. Sands, Dennis W. Sands, George A. Yant, and Jeffry Morse
Defendants were convicted of conspiring to file false Internal Revenue Service (IRS) forms and filing fаlse forms 1096 and 1099, in violation of 18 U.S.C. § 371, 18 U.S.C. § 1001, and 26 U.S.C. § 7206(1). Yant was also convicted of submitting false 1040 forms requesting refunds. Carlson, Erickson, Ros-now, and Roger Sands were convicted of violating 26 U.S.C. § 7212(a) by attempting to impede or obstruct an IRS investigation. We reversed defendants’ conspiracy convictions on the ground that the govеrnment failed to prove the existence of one overall conspiracy as charged in the indictment, and the variance between the indictment and the proof at trial prejudiced defendants. Id. at 405-08. We affirmed the other convictions, rejected challenges to the sentenсes, and remanded for “resentencing on all substantive counts without regard to the now vacated count of conspiracy.” Id. at 413 n. 25.
On remand, Rosnow, Ericksоn, and Yant challenged jurisdiction and attacked the sufficiency of the indictment charging them with the offenses. The district court
At resentencing, Roger and Dennis Sands asked the court to reconsider the prior denial of their request for an acceptance of responsibility reduction under U.S.S.G. § 3E1.1.
At Carlson’s resentencing, he objected to the imрosition of a three-level increase under U.S.S.G. § 3Bl.l(b) and requested an eviden-tiary hearing because the court initially had premised the increasе on Carlson’s role in the conspiracy, and this court vacated his conspiracy conviction. The district court denied the request for an evidentiary hearing and, relying on evidence from trial, overruled Carlson’s objection. On appeal, Carlson con
The government correctly points out that the attacks on the sufficiency of the indictment leveled by Rosnow, Erickson, and Yant are beyond the scope of our remand order. However, a defendant may raise at any time the claim that the indictment fails to state an offense. United States v. Clark,
Roger and Dennis Sands contend that the district court erred by rejecting then-request to reconsider the court’s previous denial of a reduction for acceptance of responsibility. We disagree. We affirmed the denial in the first appeal because defendants had testified at trial and had shown no remorse for their actions. Id. at 412. Thus, the law-of-the-case doctrine barred the district court from revisiting the question of acceptance of responsibility, unless defendants produced substantially different evidence or demonstrated that the prior decision was clearly erroneous and involved a manifest injustice. See United States v. Callaway,
Finally, Carlson argues that the district court clearly erred by reimposing the three-level increase under U.S.S.G. § 3Bl.l(b). See United States v. Adipietro,
Carlson contends that reversal of the conspiracy conviction precluded the use of the underlying conduct supporting that conviction for purposes of sentence enhancement. As the district cоurt observed, however, this argument is meritless. See United States v. Olderbak,
The defendant’s reliance upon the Williams case is misplaced. In United States v. Caballero,
Like the several courts that have addressed this issue since the clarifying amendment, we conclude that section 3B1 allows the sentencing judge to look to ‘“the contours of the underlying scheme itself rather than the mere elements of ‘the offense charged.’” United States v. Rodriguez,925 F.2d 107 , 111 (5th Cir.1991) (quoting United States v. Mir,919 F.2d 940 , 945 (5th Cir.1990)). See United States v. Fells,920 F.2d 1179 , 1185 (4th Cir.1990) (“we reject the argument that ... a court is bound by the narrow scope of the offense for which the defendant was convicted”); United States v. Bierley, 922 F.2d*731 1061, 1065 (3d Cir.1990) (“the fact that there is only one ‘defendant’ does not necessarily mean that there was only one ‘participant’ ” for purposes of 3B1); see also United States v. Gordon,895 F.2d 932 , 935 (4th Cir.) (Wilkins, J.) (pre-amendment decision written by Sentencing Commission сhairman, holding that mitigating adjustment is appropriate if there has been group conduct, even if group did not participate in specific сrime of conviction), cert. denied,498 U.S. 846 ,111 S.Ct. 131 ,112 L.Ed.2d 98 (1990). Of particular interest are the Fifth Circuit decisions in Rodriguez and Mir. Before the amendment, that circuit, following our Williams decision, held that section 3B1 does not allow consideration оf “relevant conduct” as defined by section 1B1.1. See United States v. Barbontin,907 F.2d 1494 (5th Cir.1990); United States v. Mourning,914 F.2d 699 (5th Cir.1990); United States v. Alfaro,919 F.2d 962 (5th Cir.1990). In response to the amendment, however, the Fifth Circuit reversed direction in Mir,919 F.2d at 944-46 , and then, in Rodriguez,925 F.2d at 110-11 , explicitly rejected its earlier interpretation. Because our reasoning in Williams — like that in the earlier Fifth Circuit cases — was nullified by the clarifying amendment, we too must adjust our interрretation of section 3B1.
Id. at 1298-99 (footnote omitted).
We thus find that the trial court did not err in reimposing the three-level increase under U.S.S.G. § 3Bl.l(b). JUDGMENT AFFIRMED.
IT IS SO ORDERED.
Notes
.The appeals of Morse and Haugen, No. 93-1155 and No. 93-1160, have been dismissed for failure to prosecute.
. The Honorable David S. Doty, United States District Judge for the District of Minnesota.
. All defendants wеre initially sentenced by Judge MacLaughlin. Judge MacLaughlin became ill at the time set for resentencing and presided only at Carlson's resentencing.