United States v. Bad Marriage ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30149
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00029-SEH
VERNON LEE BAD MARRIAGE, JR.,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
December 6, 2005—Seattle, Washington
Filed February 22, 2006
Before: Ronald M. Gould and Marsha S. Berzon,
Circuit Judges, and William W Schwarzer,*
Senior District Judge.
Opinion by Judge Schwarzer;
Dissent by Judge Berzon
*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
1899
1902 UNITED STATES v. BAD MARRIAGE
COUNSEL
David F. Ness, Assistant Federal Defender, Federal Defenders
of Montana, Great Falls, Montana, for the defendant-
appellant.
Joseph E. Thaggard, Assistant U. S. Attorney, U.S. Attorney’s
Office, Great Falls, Montana, for the plaintiff-appellee.
OPINION
SCHWARZER, Senior District Judge:
Vernon Lee Bad Marriage, Jr., (Bad Marriage) appeals his
sentence imposed following his guilty plea to a charge of
assault resulting in serious bodily injury in violation of 18
U.S.C. §§ 113(a)(6) and 1153. Finding no error, we affirm.
UNITED STATES v. BAD MARRIAGE 1903
FACTUAL AND PROCEDURAL HISTORY
Bad Marriage was indicted in March 2003 on a charge of
aggravated sexual assault in violation of 18 U.S.C.
§§ 2241(a)(1) and 1153. Following a plea agreement, he was
charged in a superseding information with assault resulting in
serious bodily injury. He pled guilty to that charge.
The incident giving rise to the charge occurred on January
30, 2003. Bad Marriage was released from tribal jail to attend
an Alcoholics Anonymous meeting. Instead, he went to the
home of Leeta Old Chief, his girlfriend. After having consen-
sual sex, they drove to visit friends. There an argument
ensued between the couple and Bad Marriage began hitting
Old Chief. The couple then drove to the rodeo grounds where
Bad Marriage severely kicked and beat Old Chief. Bad Mar-
riage and Old Chief then had anal sex. Old Chief initially told
FBI agents that she had been raped but later retracted this
claim. Once Old Chief told law enforcement officers that she
would no longer be willing to testify that Bad Marriage had
raped her, the government dismissed the indictment in
exchange for Bad Marriage’s guilty plea to the information
charging assault resulting in serious bodily injury.
The district court sentenced Bad Marriage under the then-
binding Sentencing Guidelines. The court ruled, based on
U.S.S.G. § 4A.1.3 (policy statement), that the criminal history
level III under-represented both the seriousness of Bad Mar-
riage’s past criminal conduct and the likelihood that he would
commit future crimes. It sentenced Bad Marriage to forty-one
months in prison, the high end of the sentencing range deter-
mined under the Guidelines with his offense score and
adjusted criminal history level. Bad Marriage appealed the
sentence, contending that his criminal history did not consist
of serious offenses warranting a departure under U.S.S.G.
§ 4A.1.3. This court reversed and remanded for resentencing,
holding that “an upward departure pursuant to § 4A.1.3 was
1904 UNITED STATES v. BAD MARRIAGE
not justified by the facts.” United States v. Bad Marriage, 392
F.3d 1103, 1115 (9th Cir. 2004) (Bad Marriage I).
In imposing sentence on remand, the district court provided
a lengthy statement of reasons, starting with an analysis of the
Ninth Circuit decision. It read that decision as resting on the
fundamental premise that the Sentencing Guidelines were
binding on the court. United States v. Booker, however,
changed that, establishing that application of the Guidelines
could not be mandatory. 125 S. Ct. 738, 756-57 (2005). Under
Booker, the court is required to take into account the Guide-
lines as well as the sentencing considerations contained in
18 U.S.C. § 3553(a). The court then enumerated the factors it
considered in arriving at the sentence in addition to the advi-
sory Guidelines calculation, including the defendant’s exten-
sive criminal record, the absence of assurance that the
defendant will not offend again given the opportunity, the
defendant’s capacity to commit brutal and degrading acts of
violence, and the substantial blunt force injury inflicted by the
defendant’s kicking the victim with heavy hiking boots. In
sum, the court concluded, the defendant is an extremely dan-
gerous person capable of inflicting severe harm on vulnerable
and defenseless persons, calling for a sentence that recognizes
the brutality of the assault and the need to protect the public
in the future. The court then sentenced Bad Marriage to forty-
eight months in prison. This timely appeal followed.
DISCUSSION
I. THE MANDATE AND LAW OF THE CASE
A. Law of the Case
[1] Bad Marriage’s principal contention is that the district
court failed to comply with this court’s mandate. That man-
date was to resentence Bad Marriage “within the appropriate
range.” Bad Marriage I, 392 F.3d at 1115. Bad Marriage
reads the mandate as requiring imposition of a sentence based
UNITED STATES v. BAD MARRIAGE 1905
on offense level sixteen and criminal history category III
resulting in a range of twenty-seven to thirty-three months.
We disagree.
The court’s opinion does not elucidate “the appropriate
range.” Its resentencing mandate was based on its determina-
tion that the upward adjustment of Bad Marriage’s criminal
history was not justified. Id. at 1111-13. Its decision rested on
its interpretation of U.S.S.G. § 4A1.3, “Departures Based on
Inadequacy of Criminal History Category (Policy State-
ment),” and that section’s application to the facts of the case.1
Although there is a degree of overlap between the factors
bearing on criminal history and those relevant under § 3553,
the court did not decide whether other factors relevant to the
Guidelines calculation could have justified an upward depar-
ture. See, e.g., U.S.S.G. § 5K2.8 Extreme Conduct (Policy
Statement) (2003) (court may increase the sentence above the
Guidelines range for “conduct unusually . . . brutal or degrad-
ing to the victim”).
[2] On remand, the district court looked to the Guidelines
as advisory but made no reference to Bad Marriage’s criminal
history category. When defense counsel, in the course of his
argument, asked the court to apply category III in its Guide-
lines calculation, the court did not respond, neither rejecting
1
In beginning its analysis, the court referred to Bad Marriage’s conten-
tion “that his criminal history, while extensive, does not consist of serious
offenses warranting departure under U.S.S.G. § 4A1.3.” Bad Marriage I,
392 F.3d at 1107. The court’s opinion then proceeded to discuss “Ninth
Circuit Law on § 4A1.3 Departures.” Id. at 1108. It concluded by “hold[-
ing] that the seriousness of a defendant’s prior convictions must be a sig-
nificant factor in a decision to depart under either prong of § 4A1.3.” Id.
at 1110. It next discussed the “Recidivism Prong” and concluded “that an
upward departure based on the [recidivism] prong of § 4A1.3 was not jus-
tified.” Id. at 1113. Finally, the court discussed “Substance Abuse” and
concluded that “the length and character of Bad Marriage’s criminal
record is clearly the result of a serious drinking problem. To sentence Bad
Marriage to a longer term on the basis of that record would serve no useful
purpose.” Id. at 1114.
1906 UNITED STATES v. BAD MARRIAGE
nor granting this request. The district court’s stated reasons
for imposing its sentence were, in substance, to punish the
defendant for committing a brutal assault on a defenseless
person and to protect the public from similar conduct in the
future. Although the court, free of the constraint of the Guide-
lines, imposed a more severe sentence on remand, we find
nothing in the record to suggest that the sentence contravened
the mandate.
B. The Effect of Booker
[3] Even if we were to read Bad Marriage I to hold that on
the facts no upward departure from the Guidelines range is
justified, the law of the case doctrine does not bar the sen-
tence. “Under the ‘law of the case’ doctrine, a court is ordi-
narily precluded from reexamining an issue previously
decided by the same court, or a higher court, in the same
case.” Minidoka Irrigation Dist. v. Dep’t of Interior, 406 F.3d
567, 573 (9th Cir. 2005) (quoting Old Person v. Brown, 312
F.3d 1036, 1039 (9th Cir. 2002)). The doctrine is subject to
three exceptions, only one of which is relevant here, to wit,
where intervening controlling authority makes reconsideration
appropriate. Id.[4] The opinion in Bad Marriage I was issued on December
30, 2004. On January 12, 2005, the Supreme Court decided
Booker, 125 S. Ct. 738. The Booker decision fundamentally
changed the sentencing regime under which Bad Marriage I
was decided, making the Guidelines advisory rather than
mandatory. 125 S. Ct. at 756-57 (district courts must consult
the Guidelines but are not bound by them).2 If Bad Marriage
I is read to establish the law of the case under a mandatory
Sentencing Guidelines regime, Booker, which leaves Guide-
2
Contrary to Bad Marriage’s assertion, the district court was free to con-
sider the Booker issue sua sponte. United States v. Cortez-Arias, 425 F.3d
547, 548 (9th Cir. 2005)
UNITED STATES v. BAD MARRIAGE 1907
lines as advisory only, is intervening controlling authority dis-
placing prior law of case.3
II. OTHER CONTENTIONS ON APPEAL
Bad Marriage’s other contentions may be readily disposed
of.
He contends first that the retroactive application of Booker
to increase his sentence for a pre-Booker offense violates the
Ex Post Facto clause of the Constitution. We squarely rejected
this claim in United States v. Dupas, 419 F.3d 916 (9th Cir.
2005), for three reasons: the Booker opinion specifically
makes the advisory Guidelines regime applicable to pending
cases; retroactive sentence enhancements, as opposed to retro-
active increases in the scope of criminal liability, do not
offend the ex post facto prohibition; and although application
of Booker could result in an increased sentence, the statutory
maximum penalty gave sufficient notice to satisfy due pro-
cess. Id. at 920-21.
[5] Next, Bad Marriage contends that the sentence was
unreasonable. He relies on the court’s statement in Bad Mar-
riage I that it found “nothing in the record to suggest that the
standard range set by the Sentencing Guidelines would be an
inadequate deterrent.” Id. at 1113. That statement is not help-
ful to Bad Marriage. It referred to the calculation of the appro-
priate criminal history category. As previously discussed, Bad
Marriage I decided that an upward adjustment of the criminal
history category was not justified; it did not decide the appro-
priate sentencing range. The district court followed the proper
3
Several decisions have reached the same conclusion. See, e.g., United
States v. Puche, No. 05-10033, 2005 WL 3113463, at *4 (11th Cir. Nov.
22, 2005) (unpublished); United States v. Butler, 139 F. App’x 510, 512
(4th Cir. 2005) (unpublished). See also United States v. Lang, 405 F.3d
1060, 1064 (10th Cir. 2005) (published) (stating that the Blakely decision
might constitute an exceptional circumstance for purposes of the mandate
rule).
1908 UNITED STATES v. BAD MARRIAGE
procedure in arriving at its sentence, taking into account the
Guidelines and considering the § 3553 factors, in particular
“the seriousness of the offense,” § 3553(a)(2)(A) (noting the
brutality of the assault on a defenseless person), and the need
“to protect the public from further crimes of the defendant.”
§ 3553(a)(2)(C). While we recognize that the sentence is
above the advisory Guidelines range, that alone, without a
factual showing, is insufficient to make it unreasonable.
[6] Finally, Bad Marriage contends that the imposition of
the longer sentence following his successful appeal raises a
presumption of vindictiveness. He argues that the presump-
tion applies here because the district court in increasing the
sentence did not rely on any new or additional evidence. But
the presumption applies only when “there is a ‘reasonable
likelihood’ that the increase in sentence is the product of
actual vindictiveness on the part of the sentencing authority.”
Alabama v. Smith, 490 U.S. 794, 799 (1989) (internal citation
omitted). It is overcome when “the reasons for [imposition of
a more severe sentence] affirmatively appear.” Id. at 798(quoting North Carolina v. Pearce, 395 U.S. 711, 726
(1969)). Those reasons affirmatively appear here. When the
district court imposed the original sentence, it was constrained
by the mandatory Guidelines. At resentencing, as the court
explained, that constraint had been removed freeing it to use
its discretion to impose a sentence it deemed appropriate. Its
reasons for the particular sentence are fully explained on the
record. We conclude that the change in circumstances
together with the court’s explanation for its sentence suffice
to remove any taint of vindictiveness.
CONCLUSION
For the reasons stated, the judgment and sentence are
AFFIRMED.
UNITED STATES v. BAD MARRIAGE 1909
BERZON, Circuit Judge, dissenting:
In my view, the district court did not accord the prior
panel’s opinion in United States v. Bad Marriage, 392 F.3d
1103 (9th Cir. 2004) (Bad Marriage I), the respect it is due.
Instead, the district court ignored Bad Marriage I’s legal rul-
ings and analysis of the record, which it was not entitled to
do. The majority approves of the district court’s maneuver,
perhaps sharing the district court’s discomfort with the analy-
sis and holding of Bad Marriage I. Whether or not that dis-
comfort is understandable, we cannot run an orderly justice
system if such end-runs around appellate decisions in the
same case are permitted. I therefore respectfully dissent.
In Bad Marriage I, we held that an upward departure pur-
suant to section 4A1.3 of the United States Sentencing Guide-
lines was not warranted by the facts, and struck down Vernon
Lee Bad Marriage’s forty-one month sentence. See id. at
1115. We reasoned, in part, that Bad Marriage’s criminal his-
tory did not warrant such a long sentence and that a sentence
of that length would not serve the goals of rehabilitating Bad
Marriage and protecting the public. See id. at 1114-15. On
remand, the district court correctly observed that after United
States v. Booker, 125 S. Ct. 738 (2005), the Guidelines were
advisory rather than mandatory. It then imposed a longer sen-
tence than it had previously, justifying the length of the sen-
tence with reference to, inter alia, Bad Marriage’s extensive
criminal history and the need to protect the public. In so
doing, the district court completely disregarded our determi-
nations in Bad Marriage I regarding the weight that should be
attached to Bad Marriage’s criminal history and the potential
efficacy of a long sentence, given Bad Marriage’s alcoholism.
I would hold that the district court abused its discretion
because it disregarded those determinations.
I.
Under the law of the case doctrine, a decision by this court
must generally be followed in all subsequent proceedings in
1910 UNITED STATES v. BAD MARRIAGE
the same case. See Lindy Pen Co., Inc. v. Bic Pen Corp., 982
F.2d 1400, 1404 (9th Cir. 1993). For the doctrine to apply to
a particular issue, that issue must have been “decided explic-
itly or by necessary implication in [the] previous disposition.”
Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th Cir.
1982). This general rule — that decisions of this court must
be followed in subsequent proceedings — is subject to several
exceptions. As pertinent here, the law of the case need not be
followed when “intervening controlling authority makes
reconsideration appropriate.” Old Person v. Brown, 312 F.3d
1036, 1039 (9th Cir. 2002); see also id. (listing two other
exceptions: (1) “the decision is clearly erroneous and its
enforcement would work a manifest injustice,” and (2) “sub-
stantially different evidence was adduced at a subsequent
trial” (internal quotation marks omitted)); United States v.
Lummi Indian Tribe, 235 F.3d 443, 452-53 (9th Cir. 2000)
(listing four other exceptions: (1) “the first decision was
clearly erroneous,” (2) “the evidence on remand was substan-
tially different,” (3) “other changed circumstances exist,” or
(4) “a manifest injustice would otherwise result”). We review
a district court’s failure to apply the doctrine of the law of the
case for abuse of discretion. See United States v. Alexander,
106 F.3d 874, 876 (9th Cir. 1997).
Related to the law of the case doctrine is the “rule of man-
date,” which states that a lower court may decide any issue
not foreclosed by this court’s mandate. See Herrington v.
County of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993). This
court may, however, “limit[ ] the scope of the issues for
which we remand.” United States v. Matthews, 278 F.3d 880,
889 (9th Cir. 2002) (en banc). When we clearly indicate our
intention to do so, the district court ordinarily lacks authority
to consider any issues not within the scope of the remand. See
United States v. Pimentel, 34 F.3d 799, 800 (9th Cir. 1994)
(per curiam).
We have stated that “[t]he rule of mandate is similar to, but
broader than, the law of the case doctrine” and that “[a] dis-
UNITED STATES v. BAD MARRIAGE 1911
trict court, upon receiving the mandate of an appellate court
cannot vary it or examine it for any other purpose than execu-
tion.” United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995)
(internal quotation marks omitted). We have not had occasion
to address the extent to which the exceptions in the law of the
case doctrine also apply to the mandate rule. Nor does the
majority opinion examine whether the analysis is different
under the two doctrines. See majority op. at 1906-1907.
I believe that the analysis probably is different under the
two doctrines, as each serves a different function. Both doc-
trines serve an interest in consistency, finality and efficiency.
See Bean v. Calderon, 163 F.3d 1073, 1078 (9th Cir. 1998);
Milgard Tempering, Inc. v. Selas Corp., 902 F.2d 703, 715
(9th Cir. 1990). The mandate rule, however, also serves an
interest in preserving the hierarchical structure of the court
system. See Mirchandani v. United States, 836 F.2d 1223,
1225 (9th Cir. 1988). For that reason, I would think that
exceptions to the law of the case doctrine such as manifest
injustice, see Old Person, 312 F.3d at 1039; Lummi Indian
Tribe, 235 F.3d at 453, do not apply to the mandate rule, and
that the change in law doctrine applies only to the limited
extent that the mandate need not be followed when it requires
a district court to do something that is illegal in light of inter-
vening controlling authority. In such a case, the interest in
preserving our hierarchical structure must give way to the
interest in assuring that courts do not act unlawfully.
II.
Bad Marriage I “remand[ed] to the District Court for resen-
tencing within the appropriate range.” Bad Marriage I, 392
F.3d at 1115. Had the district court resentenced Bad Marriage
prior to the Supreme Court’s decision in Booker, the district
court would have been required to sentence Bad Marriage to
a term “within the appropriate range” — i.e., between twenty-
seven and thirty-three months.1 Id.; see also id. at 1113 (not-
1
United States v. Washington, 172 F.3d 1116 (9th Cir. 1999) (Washing-
ton II), is not to the contrary. In United States v. Washington, 66 F.3d
1912 UNITED STATES v. BAD MARRIAGE
ing that “the Sentencing Guidelines set a range of 27 to 33
months for a defendant with Bad Marriage’s offense and
criminal history level”). The district court so recognized, stat-
ing that if it were resentencing Bad Marriage under the pre-
Booker regime, “the guideline range that would be mandatory
to be applied would be the 27 to 33 months.”
Bad Marriage I’s mandate requiring the district court to
issue a sentence within a particular range was, however, based
on the assumption that the Guidelines were mandatory, an
assumption no longer valid post-Booker. Had the district court
followed the mandate, the sentence would have been illegal,
because it would have been imposed pursuant to a mandatory
Guidelines regime. I therefore agree with the majority that
post-Booker, the district court did not need to follow this par-
ticular directive in Bad Marriage I.
III.
I disagree with the majority, however, that our inquiry ends
there. Bad Marriage I established more than the simple prop-
osition that Bad Marriage should have been sentenced to
twenty-seven to thirty-three months under a mandatory
Guidelines regime. In addition, as relevant here, Bad Mar-
riage I established that “[t]o sentence Bad Marriage to a lon-
ger prison term on the basis of [Bad Marriage’s] record would
serve no useful purpose.” 392 F.3d at 1114.
1101 (9th Cir. 1995) (Washington I), we had “remand[ed] for the limited
purpose of recalculating [the defendant’s] base offense level under section
2J1.2, without applying the cross-reference to section 2X1.3, and resen-
tencing him accordingly.” Id. at 1105. In Washington II, we held that
because “[t]he mandate [in Washington I] did not . . . proscribe a depar-
ture,” the district court did not err by departing. Washington II, 172 F.3d
at 1119. Here, however, the mandate expressly required the district court
to “resentenc[e] within the appropriate range,” Bad Marriage I, 392 F.3d
at 1115, not just to recalculate a base offense and resentence “according-
ly.” The much more limited mandate in this case is not covered by the
holding in Washington II.
UNITED STATES v. BAD MARRIAGE 1913
The Bad Marriage I court based its conclusion on two
grounds. First, the court observed that “[t]he underlying pur-
poses of sentencing include not only punishment and deter-
rence, but also the provision of treatment to a defendant in
need of it.” Id. (citing 18 U.S.C. § 3553(a)(2)(D)). Second,
and related, the court determined that “prison alone will nei-
ther rehabilitate an individual critically in need of substance
abuse treatment, nor, in the long run, protect society against
him. Bad Marriage is such an individual.” Id. at 1115.
Bad Marriage I relied on 18 U.S.C. § 3553(a)(2)(D) for the
proposition that the district court should have considered the
extent to which its sentence would help rehabilitate Bad Mar-
riage. See id. at 1114. Thus, the relevant law of the case estab-
lished by Bad Marriage I was that under § 3553(a): (1) Bad
Marriage’s criminal history could not be the basis for an
increased sentence, because, absent treatment for alcoholism,
an increased sentence in his case would not serve the underly-
ing purposes of sentencing, and (2) the need to protect society
from Bad Marriage also could not be the basis for an
increased sentence, again because, absent treatment for alco-
holism, detention would serve no long term protection pur-
pose. See Herrington, 12 F.3d at 905 (holding that an
intermediate determination made in a previous appellate deci-
sion was law of the case, stating that “the district court did not
err in concluding that our rejection of the $810,000.00 lost
value damages figure set an upper limit on the amount of the
Herringtons’ recoverable damages”).
Under the law of the case doctrine, this panel is not to
judge whether these propositions are correct as a matter of
law or fact, unless one of the exceptions in the doctrine
applies. No new evidence was introduced on remand, and no
other changed circumstances exist. In addition, while I might
well have ruled differently had I been on the original panel,
I am not prepared to declare its rulings clear error, nor do I
believe that a manifest injustice would result by following the
panel’s rulings. The majority issues no such pronouncements
1914 UNITED STATES v. BAD MARRIAGE
either, nor has the government so argued. Thus, the only perti-
nent question is whether Booker so undermined the legal
basis for these rulings as to permit the district court to ignore
them on remand.
The key propositions established by Bad Marriage I, aside
from the directive to sentence within a particular, mandatory
Guidelines range, are perfectly consistent with Booker —
indeed, somewhat prescient. Post-Booker, the district court
must consider the factors outlined in § 3553(a) in determining
its sentence, see Booker, 125 S. Ct. at 764, which is precisely
what the panel in Bad Marriage I did. And, while Booker held
that the Guidelines are advisory, it did not call into question
any principles concerning the appropriateness under § 3553(a)
of imposing lengthy prison sentences on individuals whose
crimes are traceable to alcoholism. Thus, Booker did not jus-
tify disregarding the Bad Marriage I court’s determinations
regarding the weight that should attach to Bad Marriage’s his-
tory of alcoholism and need for treatment in determining the
efficacy of a long prison sentence. See Ingle v. Circuit City,
408 F.3d 592, 594-95 (9th Cir. 2005) (holding that interven-
ing authority was not on point and therefore the district court
properly followed the law of the case).
IV.
The district court did not follow the law of the case. In per-
tinent part, the district court justified its forty-eight month
sentence as follows:
It is undisputed on this record that this defendant
has an extensive criminal record.
And I see nothing in this record that I can point to
with any meaningful assurance that this defendant
will not offend again if given the opportunity to do
so.
UNITED STATES v. BAD MARRIAGE 1915
This record is patently clear that Mr. Bad Mar-
riage is capable of committing what can only and
realistically be described as brutal and degrading
acts of violence. And in this particular case, an act
of violence directed to a victim who was essentially
defenseless. . . .
....
This record demonstrates that Mr. Bad Marriage is
an extremely dangerous person, capable of inflicting
severe harm upon others, and particularly inflicting
severe harm upon others who are vulnerable and
essentially defenseless. . . . And I have yet to hear
anything in the nature of a definitive acknowledg-
ment of any expression of pity for the person whom
[Bad Marriage] so severely harmed. . . .
....
And it is my determination that the need for pun-
ishment in this case is great — and frankly, miti-
gated by nothing that you, Mr. Bad Marriage, have
brought to this court’s attention.
And in my judgment, the public and your victims
have to be protected from you.
....
And I want to make clear on the record that, Mr.
Bad Marriage, the sentence that I’m going to impose
is not being placed where it will be to punish you for
a drinking problem. Nor is this sentence that this
court is going to impose in any way to penalize you
for being a Native American. . . .
This sentence that’s going to be imposed is to rec-
ognize the hostility and brutality of your act of
1916 UNITED STATES v. BAD MARRIAGE
assault upon this defenseless woman. And it is to
punish the brutal conduct that you engaged in in
which you inflicted seriously bodily harm upon her.
And it is a sentence that in the view of this court
is necessary to protect the public in the future from
your brutal and unlawful conduct.
As these statements indicate, the district court relied, in
large portion, on sentencing rationales that Bad Marriage I
expressly repudiated. The district court justified its sentence,
in part, on the ground that Bad Marriage had an “extensive
criminal history,” but Bad Marriage I stated that “[t]o sen-
tence Bad Marriage to a longer prison term on the basis of
[his] record would serve no useful purpose.” 392 F.3d at
1114. In addition, the district court relied on its concern that
Bad Marriage would “offend again” and that “the public . . .
[must] be protected from” Bad Marriage. Bad Marriage I
held, however, that “prison alone” would not rehabilitate Bad
Marriage, nor would it “protect society against him.” Id. at
1115.
Also, the district court refused to take into account consid-
erations that the Bad Marriage I court prescribed. In particu-
lar, Bad Marriage I established that the district court needed
to give strong weight to Bad Marriage’s need for treatment in
devising a sentence. See id. at 1114 (noting that “[t]he under-
lying purposes of sentencing include . . . the provision of
treatment to a defendant in need of it”); id. (noting that “the
length and character of Bad Marriage’s criminal record is
clearly the result of a serious drinking problem”); id. at 1115(“[P]rison alone will [not] rehabilitate an individual critically
in need of substance abuse treatment . . . . Bad Marriage is
such an individual.”).
On remand, the district court did not consider Bad Mar-
riage’s need for treatment at all. Instead, the district court mis-
understood the Bad Marriage I court’s discussion of treatment
UNITED STATES v. BAD MARRIAGE 1917
for alcoholism. Bad Marriage I noted the necessity of provid-
ing treatment to individuals whose crimes are related to their
alcoholism and observed that “[a]lcohol abuse on Indian res-
ervations is a social problem of devastating scope.” Id. at
1114. The district court’s only reference to this discussion in
Bad Marriage I is as follows:
And I want to make clear on the record that, Mr.
Bad Marriage, the sentence that I’m going to impose
is not being placed where it will be to punish you for
a drinking problem. Nor is this sentence that this
court is going to impose in any way to penalize you
for being a Native American. . . . .
The district court thus misread Bad Marriage I as standing for
the proposition that the district court could not sentence Bad
Marriage to a long sentence on the ground that Bad Marriage
had a drinking problem or was a Native American. Instead,
the relevant portion of Bad Marriage I stood for the proposi-
tion that the district court should consider goals of rehabilita-
tion through treatment for alcoholism when issuing its
sentence.
True, the district court did not rely solely on justifications
expressly repudiated in Bad Marriage I. The district court
also justified its sentence on the grounds that the offense was
especially brutal and that Bad Marriage was not sufficiently
remorseful, justifications that Bad Marriage I had no occasion
to address. The fact that some of the district court’s reasons
for imposing the long sentence did not violate the law of the
case does not, however, immunize the sentence for law of the
case purposes. Rather, the district court failed to follow Bad
Marriage I by relying on determinations that Bad Marriage
I repudiated and by failing to consider factors it declared rele-
vant.
For the foregoing reasons, I would hold that the district
court abused its discretion by not following the law of the
1918 UNITED STATES v. BAD MARRIAGE
case. Again my conclusion is not that I would have struck
down the forty-eight month sentence were I reviewing it in
the first instance, or that, had I been on the Bad Marriage I
panel, I would have decided some or all of the issues as the
panel did. Rather, my point is that the law of the case doc-
trine, “a judicial invention designed to aid in the efficient
operation of court affairs,” Milgard Tempering, Inc., 902 F.2d
at 715, has independent significance and must be given effect
if the federal trial and appellate courts are to function effi-
ciently and as coherent, interconnected, but hierarchical insti-
tutions. The district courts need to follow principles
announced by courts of appeal in a particular case, absent an
acceptable reason why not, and we ourselves cannot recon-
sider in a second appeal issues decided in a first one, again
absent an acceptable reason for doing so. Here, the change in
the law provides a compelling reason for not sentencing
within the prescribed Guidelines range, but does not provide
an acceptable reason for not following the intermediate rul-
ings contained in Bad Marriage I.
I would therefore vacate the sentence and remand with
instructions that Bad Marriage be resentenced in accord with
the principles established in Bad Marriage I, described above.2
2
I would probably remand to a different judge at this juncture, because
the district court’s treatment of Bad Marriage I suggests a discomfort with
following it. See United States v. Sears, Roebuck & Co., 785 F.2d 777,
781-82 (9th Cir. 1986).