UNITED STATES of America, Plaintiff-Appellee, v. William IREY, Defendant-Appellant.
No. 11-12483
United States Court of Appeals, Eleventh Circuit.
Feb. 24, 2012.
458 F. App‘x 854
Non-Argument Calendar.
William R. Ponall, Kirkconnell, Lindsey, Snure & Ponall, PA, Winter Park, FL, for Defendant-Appellant.
Before CARNES, PRYOR, and KRAVITCH, Circuit Judges.
PER CURIAM:
William Irey pleaded guilty to and was convicted of sexually exploiting children overseas for the purpose of producing child pornography in violation of
The facts underlying Irey‘s criminal conduct are detailed in United States v. Irey, 612 F.3d 1160, 1166-68 (11th Cir. 2010) (en banc), which summed up those facts as follows:
It is diffiсult to find a case involving sexual abuse of children that compares to this one. The number of Irey‘s victims (at least 50), the very yоung age (four, five, and six years old) of some of them, the extreme nature of the abuse and torture that he inflicted on them, thе number of years it went on (four or five), and the massive amount of graphic child pornography that he single-handedly produced and distributed (at least 1,200 photographs or videos showing Irey himself sexually abusing the children) combine to make his criminal behаvior the worst of the worst.
Id. at 1219-20. The district court initially sentenced Irey to 210 months, which was a substantial downward deviation from the 360-month sentence recommended by the sentencing guidelines. See id. at 1180. The government appealed and this Court sitting en banc held that the downward variance was substantively unreasonable. Id. at 1222. We concluded that no downward variance would be reasonable in Irey‘s case, and “[n]othing less than the advisory guidelines sentence of 30 years, which is the maximum available, will serve the sentеncing purposes set out in [
We explained:
This is one of those unusual cases where the top and bottom of the guidelines range are the same; both are 30 years. There can be no upward variance because the statutory maximum is also 30 years. As a rеsult, our holding that no downward variance is reasonable under the totality of the facts and circumstances of this case means that on remand the sentence must be 30 years.
Id. at 1224. Accordingly, we issued a very limited remand: “Because we have detеrmined that a downward deviation from the guidelines range in this case is unreasonable, it follows that the only action on remand that will be consistent with this opinion is resentencing within the guidelines range, which necessarily means a sentence of 30 years.” Id. at 1224-25.
The Supreme Court denied Irey‘s petition for a writ of certiorari. Irey v. United States, — U.S. —, 131 S. Ct. 1813, 179 L. Ed. 2d 772 (2011). After that the district court issued a judgment that followed this Court‘s limited mаndate and resentenced Irey to 360 months (30 years). Irey then moved the district court to vacate that judgment, arguing that it should have permitted him to present evidence of his post-sentencing rehabilitation based on the Supreme Court‘s decision in Pepper v. United States, 562 U.S. —, 131 S. Ct. 1229, 179 L. Ed. 2d 196 (2011), whiсh was issued after our en banc decision in this case. The district court denied Irey‘s motion, finding that Pepper did not apply because our mandate limited the remand to having that court impose a 30-year sentence.
Irey appealed, raising one issuе: whether the district court erred by resentencing him to 30 years of imprisonment without considering evidence of his post-sentenсing conduct. The crux of his argument is that Pepper was an intervening change in controlling law that required the district court to consider his pоst-sentencing conduct notwithstanding our limited mandate that only a 30-year sentence would be reasonable.
II.
A district court аcting on remand cannot vary or examine our mandate “for any other purpose than execution; or give any
The mandate rule has three exceptions: (1) a later trial produces substаntially new evidence; (2) there is a change in controlling legal authority; or (3) a clear error in the earlier appellate decision would work manifest injustice. United States v. Amedeo, 487 F.3d 823, 830 (11th Cir. 2007). Irey argues that the second exception to the mandate rule aрplies here. The Supreme Court‘s Pepper decision, however, was not an intervening change in controlling law that required or permitted the district court to deviate from this Court‘s mandate in order to consider Irey‘s post-conviction conduct.
Pepper held that when a defendant‘s sentence has been set aside on appeal, a district court “may consider evidence оf a defendant‘s post-sentencing rehabilitation at resentencing and such evidence may, in appropriate cases, support a downward variance from the advisory Guidelines range.” Pepper, 562 U.S. at —, 131 S. Ct. at 1249 (emphasis added). The Court expressly stated, however, that it did not “mean to preclude courts of appeals from issuing limited remand orders, in appropriate cases, that may render evidence of post-sentencing rehabilitation irrelevant in light of the narrow purposes of thе remand proceeding.” Id. at 1249 n.17. Irey‘s case is one of those for which our limited remand order rendered evidence of рost-sentencing rehabilitation irrelevant in light of the narrow purposes of the remand proceeding. The district court fоllowed our limited remand order as it was required to do.1
AFFIRMED.