USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1237
UNITED STATES OF AMERICA,
Appellee,
v.
GERALD CONNELL,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
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Before
Selya, Circuit Judge,
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Aldrich and Coffin, Senior Circuit Judges.
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Arthur W. Tifford for appellant.
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Craig N. Moore, Assistant United States Attorney, with whom
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Edwin J. Gale, United States Attorney, and Stephanie S. Browne,
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Assistant United States Attorney, were on brief, for the United
States.
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October 6, 1993
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SELYA, Circuit Judge. This appeal, in which we are
SELYA, Circuit Judge.
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asked to review the district court's denial of a motion to
reconsider a sentence previously imposed, presents yet another
permutation of an existing application of the "law of the case"
doctrine. For the reasons limned herein, we affirm the district
court's order.
I. BACKGROUND
I. BACKGROUND
Defendant-appellant Gerald Connell pleaded guilty to an
information that charged him with structuring cash transactions
to avoid certain reporting requirements. See 31 U.S.C. 5313,
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5324 (1988). At a sentencing hearing held on June 26, 1991, the
district court imposed a prison sentence (thirty months) that
fell within the guideline sentencing range (GSR), fixed a
supervised release period, fined Connell $15,000, and directed
him to pay the costs of his forthcoming confinement at the rate
of $1,415.56 per month.
Connell appealed, complaining that his offense level
had been improperly constituted, thereby inflating the GSR. We
affirmed the sentence, see United States v. Connell, 960 F.2d 191
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(1st Cir. 1992), but with the proviso that the district court, on
remand, nevertheless might consider whether an intervening change
in the sentencing guidelines warranted adjustment of the
sentence. See id. at 199.1
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1The revision to the guidelines involved the number of
levels that should be added to a defendant's base offense level
in a case where, as here, criminally derived funds were knowingly
laundered. The extent, timing, and effect of the revision are
explained in our earlier opinion, see Connell, 960 F.2d at 197,
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2
After the case returned to the district court,
defendant sought an adjustment of sentence based on the changed
guideline and also moved for reconsideration of the $15,000 fine.
The court heard oral argument on May 7, 1992. It issued an order
on that date recomputing the GSR in line with the revised
guideline and reducing Connell's prison term to twenty-seven
months, but leaving the fine intact. The cost-of-confinement
portion of the sentence remained unchallenged and unchanged
(except that the court's estimate of overall cost was lowered to
reflect the three-month decrease in the term of immurement). An
amended judgment was entered on or about May 28, 1992. Connell
appealed from the order and judgment, but let the appeal slide.
The amended judgment thus became final.
Some seven months later, Connell shifted gears. He
retained new counsel and filed a further motion for
reconsideration of sentence in which he raised, for the first
time, a complaint about the cost-of-confinement order.2 The
district court denied the motion.3 This appeal followed.
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and we will not rehearse those details here.
2Connell filed this motion in the district court on November
24, 1992, and filed an amended motion on December 23, 1992. For
ease in reference, we treat these pleadings as a single motion,
sometimes styled the "December 1992 motion for reconsideration."
3Although the government has not raised the point, we
question whether the district court, so long after the appeal
period expired, had jurisdiction to entertain Connell's motion
for reconsideration. See United States v. Miller, 869 F.2d 1418,
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1421 (10th Cir. 1989) (ruling that the district court lacked
jurisdiction to entertain a motion to reconsider in a criminal
case where defendant filed the motion twenty-one months after the
date on which the appeal period [10 days] began to run); United
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3
II. DISCUSSION
II. DISCUSSION
Connell appeals the denial of his December 1992 motion
for reconsideration, sounding two variations on a single theme:
that U.S.S.G. 5E1.2(i), which provides for cost-of-confinement
orders in certain criminal cases,4 is unconstitutional or,
alternatively, is in excess of the Sentencing Commission's
statutory powers. Although the challenge itself is not
frivolous, compare, e.g., United States v. Spiropoulos, 976 F.2d
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155, 165-69 (3d Cir. 1992) (striking down the imposition of a
cost-of-confinement order on similar grounds) with, e.g., United
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States v. Turner, ___ F.2d ___, ___ (7th Cir. 1993) [No. 93-1148,
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States v. Cook, 670 F.2d 46, 48 (5th Cir.) (holding that the
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district court lacked jurisdiction to entertain a motion for
rehearing filed fifty-seven days after the entry of final
judgment in a criminal case), cert. denied, 456 U.S. 982 (1982).
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We need not probe the point, however, for it is settled that an
appellate court may forego the resolution of a jurisdictional
question if, as is true here, the appeal is uncomplicated and
easily resolved in favor of the party to whose benefit the
jurisdictional question would redound. See Norton v. Mathews,
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427 U.S. 524, 532 (1976); Secretary of the Navy v. Avrech, 418
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U.S. 676, 677-78 (1974) (per curiam); cf. United States v.
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Leavitt, 925 F.2d 516, 517 (1st Cir. 1991) (stating that a court
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may overlook waiver of an issue by a criminal defendant so long
as resolution on the merits will favor the same party as would a
disposition premised on waiver).
4The guideline provides in pertinent part:
Notwithstanding the provisions of subsection
(c) [the fine table] of this section, but
subject to the provisions of subsection (f)
[discussing the defendant's ability to pay]
. . . , the court shall impose an additional
fine amount that is at least sufficient to
pay the costs to the government of any
imprisonment, probation, or supervised
release ordered.
U.S.S.G. 5E1.2(i).
4
1993 U.S. App. LEXIS 17472 at *3-*7] (upholding a cost-of-
confinement order against a similar challenge) and United States
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v. Hagmann, 950 F.2d 175, 187 (5th Cir. 1991) (same), cert.
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denied, 113 S. Ct. 108 (1992); see also United States v.
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Carrozza, ___ F.2d ___, ___ (1st Cir. 1993) [No. 92-1798, slip
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op. at 34-37] (leaving question open), Connell has failed
properly to preserve it in the circumstances of this case.
This case is analogous in factual profile and legal
stance to United States v. Bell, 988 F.2d 247 (1st Cir. 1993)
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(Bell II). Bell originally challenged his sentence as a career
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offender under the sentencing guidelines, contending that the
offense of conviction being a felon in possession of a firearm
was not a crime of violence. See id. at 249; United States v.
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Bell, 966 F.2d 703, 704 (1st Cir. 1992) (Bell I). Bell contended
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that he should have been sentenced instead under the Armed Career
Criminal Act (ACCA), 18 U.S.C. 924(e)(1)(1988). See Bell II,
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988 F.2d at 249; Bell I, 966 F.2d at 704. We sustained Bell's
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appeal, holding "that, where the offense of conviction is the
offense of being a convicted felon in knowing possession of a
firearm, the conviction is not for a `crime of violence' and
that, therefore, the career offender provision of the federal
sentencing guidelines does not apply." Bell I, 966 F.2d at 703.
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Hence, we vacated Bell's sentence and remanded for resentencing
in light of our opinion. See id. at 707.
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At the resumed sentencing hearing, Bell for the first
time sought to challenge the validity of his prior convictions
5
and, through that medium, his ACCA status. The district court
ruled that the objection was untimely and sentenced Bell as an
armed career criminal. See Bell II, 988 F.2d at 249-50. We
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affirmed the district court's decision to deny reconsideration of
the second, delinquent, challenge. See id. at 252.
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The lesson of the Bell cases is as clear as their
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namesake:
[A] legal decision made at one stage of a
civil or criminal case, unchallenged in a
subsequent appeal despite the existence of
ample opportunity to do so, becomes the law
of the case for future stages of the same
litigation, and the aggrieved party is deemed
to have forfeited any right to challenge that
particular decision at a subsequent date.
Id. at 250. This lesson embodies a rather straightforward
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application of the law of the case doctrine a doctrine that
is rooted in an array of prudential considerations: "stability
in the decisionmaking process, predictability of results, proper
working relationships between trial and appellate courts, and
judicial economy." United States v. Rivera-Martinez, 931 F.2d
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148, 151 (1st Cir.), cert. denied, 112 S. Ct. 184 (1991). That
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is to say, law-of-the-case rules afford courts the security of
consistency within a single case while at the same time avoiding
the wastefulness, delay, and overall wheel-spinning that attend
piecemeal consideration of matters which might have been
previously adjudicated. See 18 Charles A. Wright et al., Federal
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Practice & Procedure 4478 at 603 (Supp. 1993). In the
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interests of both consistency and judicial economy, therefore,
litigants should not ordinarily be allowed to take serial bites
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at the appellate apple. See, e.g., United States v. Rosen, 929
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F.2d 839, 842 n.5 (1st Cir.), cert. denied, 112 S. Ct. 77 (1991);
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United States v. DeJesus, 752 F.2d 640, 642-43 (1st Cir. 1985);
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White v. Murtha, 377 F.2d 428, 431 (5th Cir. 1967); see also
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Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d
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243, 250 (D.C. Cir. 1987) (stating that a legal decision made at
one stage of litigation becomes the law of the case for
subsequent stages of litigation if the opportunity for
challenging the decision in an earlier appeal existed and went
unexploited).
We think it follows that when a trial court, on remand,
seeks to dispose of a case in accordance with an appellate
court's mandate, it "must implement both the letter and the
spirit of the mandate, taking into account the appellate court's
opinion and the circumstances it embraces." United States v.
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Kikumura, 947 F.2d 72, 76 (3d Cir. 1991) (citation and internal
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quotation marks omitted). Because the mandate serves as a
limitation on the power of the trial court, the issues that
remain open on remand frequently will be circumscribed by the
earlier appeal and by the appellate court's disposition of the
issues therein. See Rivera-Martinez, 931 F.2d at 150-51; United
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States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992).
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The case before us is governed by these rules. In
1991, the district court invoked U.S.S.G. 5E1.2(i) and
sentenced Connell, inter alia, to pay the costs of his
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confinement. Connell appealed his sentence, but eschewed any
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challenge to the cost-of-confinement order. Having foregone that
opportunity, Connell could not thereafter insist that the
district court exceed the limited scope of our remand in order to
revisit a settled issue.
In this case, moreover, Connell defaulted not once, but
twice. As we have indicated, he did not challenge the cost-of-
confinement order on his direct appeal. He then compounded his
difficulties by omitting any reference to the order in the
proceedings that immediately followed our remand. His
afterthought request for reconsideration, occurring, as it did,
some seven months after the district court had fulfilled its
mission on remand and well beyond the expiration of the appeal
period in respect to the revised sentence came too late. See,
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e.g., United States v. Ramirez, 954 F.2d 1035, 1038 (5th Cir.)
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(holding that, in order to be timely, a criminal defendant's
motion for reconsideration must be filed within the ten-day time
period allotted for appeal), cert. denied, 112 S. Ct. 3010
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(1992); see also United States v. Miller, 869 F.2d 1418, 1421
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(10th Cir. 1989); United States v. Cook, 670 F.2d 46, 48 (5th
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Cir.), cert. denied, 456 U.S. 982 (1982). After all, if Connell,
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having initially conceded the cost-of-confinement issue, could
not have raised it when the district court, on remand, undertook
its reconsideration of the incarcera- tive portion of his
sentence, see Bell II, 988 F.2d at 250, then he clearly had no
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right to raise the issue after the revised sentence had become
final. Cf., e.g., Witty v. Dukakis, ___ F.2d ___, ___ (1st Cir.
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8
1993) [No. 93-1238, slip op. at 7] ("A party confronted by a set
period for taking an action cannot allow the time to lapse and
then resurrect his rights merely by asking the court to
reconsider or to confirm what the court has already done.").
To be sure, neither the law of the case doctrine nor
its kissing cousin, the so-called "mandate rule," is designed to
function as a straitjacket. Rather, these are discretion-guiding
principles, generally thought to be subject to exceptions in the
interests of justice.5 See Bell II, 988 F.2d at 251 (collecting
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cases). But, the exceptions are narrowly configured and seldom
invoked, and this case has none of the requisite earmarks: no
new evidence has been unearthed, no controlling precedent has
emerged suddenly, the motion for reconsideration contained no
suggestion that Connell lacks the means to pay the cost-of-
commitment impost, the delay in raising the point is unexcused
and seems excessive, and, most importantly, we are unpersuaded
that the "decision was clearly erroneous and would work a
manifest injustice." Rivera- Martinez, 931 F.2d at 151 (quoting
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White, 377 F.2d at 432). Given these circumstances, and mindful
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of the substantial latitude retained by the district court in
deciding whether to rethink matters previously set to rest, see
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United States v. Roberts, 978 F.2d 17, 20-21 (1st Cir. 1992), we
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cannot say that the court below abused its discretion in denying
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5Although it is not altogether clear that a trial court on a
limited remand may exceed, for whatever reason, the scope of the
appellate court's mandate, see Bell II, 988 F.2d at 251 n.2, we
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assume arguendo, favorably to Connell, that such power exists.
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9
Connell's belated motion for reconsideration of this aspect of
his sentence.
III. CONCLUSION
III. CONCLUSION
We need go no further.6 Courts can only function
under the aegis of rules and parties who ignore the rules do so
at their peril. See, e.g., Puleio v. Vose, 830 F.2d 1197, 1203
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(1st Cir. 1987) ("The law ministers to the vigilant not to those
who sleep upon perceptible rights."), cert. denied, 485 U.S. 990
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(1988). So it is here: appellant, having failed to challenge
the cost-of-confinement order in a timeous manner, must bear the
predictable consequences of his neglect. On the facts of this
case, we discern no injustice in holding appellant to the usual
raise-or-waive standard.
Affirmed.
Affirmed.
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6Citing a November 1992 amendment to U.S.S.G. 3E1.1,
Connell's December 1992 motion for reconsideration also asserted
an entitlement to a more extravagant credit for acceptance of
responsibility. The district court hewed to the original two-
level decrease for acceptance of responsibility because it did
not believe that the 1992 amendment could be applied
retroactively. This court later reached the same conclusion in
an unrelated case. See United States v. Desouza, 995 F.2d 323,
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324 (1st Cir. 1993) (per curiam). In light of Desouza,
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appellant's counsel abandoned this issue at oral argument.
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