United States v. Buckley, Mark V. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3845
United States of America,
Plaintiff-Appellee,
v.
Mark V. Buckley,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 CR 615--Elaine E. Bucklo, Judge.
Submitted April 25, 2001--Decided May 24, 2001
Before Bauer, Posner, and Diane P. Wood,
Circuit Judges.
Posner, Circuit Judge. Holding that
obstruction of justice at the sentencing
hearing precluded a sentencing discount
for acceptance of responsibility, we
vacated the defendant’s sentence and
remanded for resentencing. 192 F.3d 708
(7th Cir. 1999). On remand the district
judge duly resentenced Buckley without an
acceptance of responsibility discount.
This second appeal complains about the
judge’s refusal to depart downward on the
basis of the defendant’s claimed
"extraordinary efforts at post-sentence
rehabilitation." The specific complaint
is that the judge thought herself
precluded from considering such a
downward departure by our opinion.
The scope of a remand is determined, of
course, by the order of remand, e.g.,
Moore v. Anderson, 222 F.3d 280, 283 (7th
Cir. 2000); United States v. Parker, 101
F.3d 527, 528 (7th Cir. 1996); United
States v. Ben Zvi, 242 F.3d 89, 95 (2d
Cir. 2001), and our remand was for the
limited purpose of enabling the district
judge to resentence the defendant without
an acceptance of responsibility discount.
Our ruling that the defendant was not
entitled to the discount was the law of
the case and bound the district judge
unless extraordinary circumstances
warranted reconsideration. United States
v. Aramony, 166 F.3d 655, 662 (4th Cir.
1999); United States v. Moored, 38 F.3d
1419, 1421 (6th Cir. 1994); see generally
Christianson v. Colt Industries Operating
Corp., 486 U.S. 800, 817 (1988); United
States v. Polland, 56 F.3d 776, 779 (7th
Cir. 1995). (Were this not the rule,
piecemeal appeals would be encouraged.)
Nor would she be entitled, again in the
absence of extraordinary circumstances,
to revisit other aspects of the sentence,
grounds for departure, etc.; for they
would be outside the scope of the remand.
Id. at 777-78; Pearson v. Edgar, 153 F.3d
397, 405 (7th Cir. 1998); United States
v. Hass, 199 F.3d 749, 752 (5th Cir.
1999). But the qualification "in the
absence of extraordinary circumstances"
is vital. The order of remand did not
preclude the judge’s consideration of
extraordinary unforeseen events occurring
after the original sentencing, events not
before us when we remanded the case, to
the extent they bore on the sentence.
North Carolina v. Pearce, 395 U.S. 711
(1969); United States v. Jackson, 181
F.3d 740, 746-47 (6th Cir. 1999); United
States v. Apple, 962 F.2d 335, 337 (4th
Cir. 1992); Puente v. United States, 676
F.2d 141, 145 (5th Cir. 1982).
The district judge may not have
understood this clearly--may have
thought, as the defendant argues, that
our order of remand prevented her from
doing anything but lancing the acceptance
of responsibility discount--but in any
event she expressed dubiety about the
defendant’s claim of "post-sentence
rehabilitation," and rightly so. Although
some courts had entertained such claims
as a ground for a downward departure
before the Sentencing Commission nixed
it, e.g., United States v. Maldonado, 242
F.3d 1, 5 (1st Cir. 2001); United States
v. Cook, 238 F.3d 786, 791 (6th Cir.
2001); United States v. Green, 152 F.3d
1202, 1207 (9th Cir. 1998); contra,
United States v. Sims, 174 F.3d 911, 912
(8th Cir. 1999), and the Commission’s new
guideline, U.S.S.G. sec. 5K2.19, is not
applicable to our defendant (it took
effect on November 1, 2000, six weeks
after he was resentenced), see U.S.S.G.
sec. 1B1.11(a); United States v.
Minneman, 143 F.3d 274, 281 (7th Cir.
1998), we cannot imagine how a
defendant’s decision to be on his best
behavior for a period of time after
sentencing (20 months in this case), when
he is hoping for a reversal that will
require that he be resentenced, could be
a persuasive ground for a sentencing
discount. Anyway, the claim of post-
sentencing rehabilitation here is based
on modest religious activities that do
not begin to justify the extraordinary
relief requested.
Affirmed.