United States v. Elizondo

United States Court of Appeals
Fifth Circuit
F I L E D
January 15, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-10131
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ENRIQUE ELIZONDO, ALSO KNOWN AS RICKEY ELIZONDO,
Defendant-Appellant
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:03-CR-395-3
______________________________
Before HIGGINBOTHAM, SMITH, and
DEMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Enrique Elizondo was convicted of conspir-
acy to commit mail fraud. We affirmed his
conviction but remanded for resentencing in
light of United States v. Booker, 543 U.S. 220
(2005). He now appeals his new sentence, in-
cluding the restitution order. We affirm the re-
stitution but vacate the sentence and remand
for resentencing.
I.
A jury convicted Elizondo for his participa-
tion in a scheme to defraud undocumented ali-
ens by promising them immigration services.
We remanded “for resentencing in accordance
with Booker.” United States v. Garza, 429
F.3d 165, 174 (5th Cir. 2005), cert. denied,
126 S. Ct. 1444 (2006). The district court im-
posed the same sentence on remand.

-- 1 of 4 --

2
The heart of this appeal is the court’s rea-
sons for doing so. Elizondo contends that the
court erroneously believed it was constrained
by our opinion affirming the sufficiency of the
evidence for Elizondo’s conviction. Specifi-
cally, Elizondo argues that the court (1) re-
fused to consider his relevant conduct1 in re-
sentencing and (2) refused to entertain objec-
tions to the restitution penalty.
The district court explained the reason it
resentenced Elizondo to the same sentence:
I am going to resolve the defendant’s ob-
jections in the manner recommended by the
probation officer . . . . Beyond saying that,
I want to make just a couple of comments
. . . . It seems to me that the submissions
that you gave me were accurate in the
sense that the lynchpin of your argument is
that Mr. Elizondo’s relevant conduct within
the meaning of Guideline Section 1B1.3
was limited to his acts and omissions at the
Corsicana office, and thus, he could not
reasonably foresee the entire scope of this
conspiracy or joint criminal activity so that
he could not be jointly and severally liable
for the amount of the restitution order
which was [$176,000.00] or for the offense
level that was computed in the Presentence
Report which was based upon the amount
of loss to these victims, the number of vic-
tims and the fact that the victims were es-
pecially vulnerable. The reason I think that
argument concerning relevant conduct is
off the mark is the language of the Court of
Appeals itself in this written opinion issued
by the Court on October 25th, 2005 . . . .
In other words, I think the view that Mr.
Elizondo is urging now as to his role in the
conspiracy is at variance with what the
Court of Appeals has already determined
the facts in this case to be, viewed in the
light most favorable to the government's
verdict, and so I appreciate the diligence
that you have shown and your professional-
ism in making these arguments, but I simply
am not persuaded by them, and so I will
overrule the defendant’s objections and re-
solve those objections in the manner rec-
ommended by the probation officer.
Similarly, the court stated the reasons for
refusing to amend the amount of restitution:
I believe that the Mandatory Victim Resti-
tution Act of 1996 is applicable . . . . And
the amount of loss was originally deter-
minedSSand I see no reason to change this
determination nowSSto be $176,176. . . .
One comment I should probably make in
the event that another appeal is taken from
this sentence, Ms. Brandt on behalf of Mr.
Elizondo made the point in her objections
and sentencing memorandum that at most
five hundred dollars in restitution could be
ordered to be made by Mr. Elizondo be-
cause of his limited role in this joint crimi-
nal activity. I am not clear whether that
argument is really open to Mr. Elizondo on
this resentencing, although admittedly re-
stitution orders are a part of a sentence in a
criminal case. But it appeared to me that
argument might have been foreclosed by
the Court of Appeals in its opinion in this
case . . . . So as I said, I think certainly the
opinion of the Court of Appeals can be read
to foreclose the argument made here by
Mr. Elizondo limiting the amount of restitu-
tion he has been ordered to make. But
even if that issue is fully open again on re-
sentencing, I see no reason to make any dif-
ferent restitution order now than I did ori-
ginally and thus decline to do so.
1 See U.S.S.G. § 1B1.3.

-- 2 of 4 --

3
II.
Elizondo appeals on two grounds. We ad-
dress each in turn.
A.
Elizondo contends that the court errone-
ously refused to consider his relevant conduct
in his second sentence because of its incorrect
belief it was bound by our prior opinion’s dis-
cussion of the facts.2 In response, the govern-
ment urges that the court (1) did not base its
decision on our prior opinion and (2) could not
have properly considered Elizondo’s relevant
conduct, because of the mandate rule.3
“We review de novo a district court’s inter-
pretation of our remand order, including
whether the law-of-the-case doctrine or man-
date rule forecloses any of the district court’s
actions on remand.” Pineiro, 470 F.3d at 204.
The district court’s statements about our prior
opinion and that opinion’s binding effect on
the district court are properly analyzed under
the law of the case doctrine, under which “‘an
issue of law or fact decided on appeal may not
be reexamined either by the district court on
remand or by the appellate court on a subse-
quent appeal.’” United States v. Becerra, 155
F.3d 740, 752 (5th Cir. 1998) (quoting Ill.
Cent. Gulf R.R. v. Int’l Paper Co., 889 F.2d
536, 539 (5th Cir.1989)).
Despite the government’s arguments to the
contrary, the district court appears to have
considered itself constrained by our prior de-
cision. The court stated that the reason it
thought the “argument concerning relevant
conduct is off the mark is the language of the
Court of Appeals.” Further, Elizondo’s argu-
ment failed, the court states, because it “is at
variance with what the Court of Appeals has
already determined the facts in this case to be.”
The court did not give any independent rea-
sons for rejecting Elizondo’s request that the
court look at his relevant conduct; it solely
relied on our prior opinion.
The court erred by considering itself bound
by our determination of the facts. In our prior
opinion, we determined whether a reasonable
jury could have found Elizondo guilty.4 We
did not determine what actually happened; in-
stead, we determined whether the evidence
was sufficient to support the verdict. For sen-
tencing, however, a court does not draw every
reasonable inference in favor of the govern-
ment, so our conclusions about the facts being
sufficient were not binding at resentencing.
Moreover, in our prior opinion we deter-
mined the sufficiency of the evidence to estab-
lish that Elizondo had committed an offense,
2 Elizondo’s brief analyzes the case through the
lense of the doctrine of collateral estoppel, but we
analyze resentencing cases under the law of the
case doctrine. E.g., United States v. Pineiro, 470
F.3d 200, 204-05 (5th Cir. 2006); United States v.
Hamilton, 440 F.3d 693, 697 (5th Cir.), cert.
dism’d, 126 S. Ct. 2887, cert. denied, 127 S. Ct.
176 (2006); United States v. Lee, 358 F.3d 315,
320 (5th Cir. 2004).
3 The government also argues that Elizondo
waived this argument by not raising the issue of his
relevant conduct in his first appeal. Elizondo’s
prior brief did raise the issue of his relevant con-
duct, so the government’s contention is meritless.
4 In our prior opinion, we made plain that we
were reviewing only whether the evidence was suf-
ficient. Garza, 429 F.3d at 169 (“This evidence is
clearly sufficient for a rational jury, viewing the
evidence in the light most favorable to the Govern-
ment, to have found all the elements of conspiracy
to commit mail fraud beyond a reasonable
doubt.”).

-- 3 of 4 --

4
but sentencing requires evaluating facts be-
yond the facts required to establish an offense.
In United States v. Murrow, 177 F.3d 272,
301 (5th Cir. 1999), we explained that sen-
tencing requires a judge to look at all the defen-
dant’s relevant conduct, not just the conduct
that constitutes the offense.5 Even if our prior
opinion had established the facts of the case, it
established only the facts relating to the crimi-
nal liability. The district court still needed to
decide other relevant facts.
The government posits that even if the dis-
trict court erred, we should not vacate the sen-
tence and remand, because the district court
lacked the power to evaluate Elizondo’s rele-
vant conduct under the mandate rule. That
rule “compels compliance on remand with the
dictates of a superior court and forecloses re-
litigation of issues expressly or impliedly de-
cided by the appellate court.” Lee, 358 F.3d at
321. We have adopted a restrictive rule for
evaluating the scope of a mandate, id. at 321;
“the resentencing court can consider whatever
this court directsSSno more, no less,” id.
at 323.
The mandate instructed the district court to
resentence “in accordance with Booker.” A
consideration of Elizondo’s relevant conduct
fell within this mandate, because sentencing
under the guidelines requires a consideration
of the defendant’s relevant conduct.6 The dis-
trict court could not accomplish its mandate
without considering relevant conduct, so the
mandate rule did not preclude it from doing
so. Because it erroneously considered itself
bound by our prior discussion of the facts, it
erred in resentencing.
B.
Elizondo complains that the district court
erroneously refused to alter his restitution.
The court, however, was precluded by the
mandate rule from considering a change to the
restitution penalty. We remanded for resen-
tencing in accordance with Booker, which
does not implicate the statute under which Eli-
zondo was ordered to pay restitutionSSthe
MandatoryVictims Restitution Act.7 Thus, re-
sentencing in accordance with Booker does not
require reevaluating the restitution order. The
district court would have exceeded its mandate
if it changed the amount of restitution, so it did
not err in refusing to alter Elizondo’s restitu-
tion penalty.
We AFFIRM Elizondo’s restitution, but we
VACATE his sentence and REMAND for re-
sentencing in accordance with this opinion.
5 “Under the Sentencing Guidelines, the sentenc-
ing range for a particular offense is determined on
the basis of all ‘relevant conduct’ in which the de-
fendant was engaged and not just with regard to the
conduct underlying the offense of conviction.”
Murrow, 177 F.3d at 301. See also U.S.S.G.
§ 1B1.3 cmt. n.1 (“The principles and limits of
sentencing accountability under this guideline are
not always the same as the principles and limits of
criminal liability.”).
6 United States v. Alonzo, 435 F.3d 551, 553
(5th Cir. 2006) (“It is apparent that facts relevant
to sentencing include relevant conduct under
U.S.S.G. § 1B1.3.”).
7 See Garza, 429 F.3d at 170 (“Booker’s hold-
ing that the Sentencing Guidelines are advisory
does not directly affect the MVRA since it is a stat-
ute ‘distinct and separate from the United States
Sentencing Guidelines.’ See United States v. Sose-
bee, 419 F.3d 451, 462 (6th Cir.), cert. denied,
126 S. Ct. 843 (2005).”).

-- 4 of 4 --