UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JAMES HOWARD BURNS, 

 Defendant - Appellant. 

No. 15-5022 

(D.C. No. 4:12-CR-00053-CVE-1) 

(N.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges. 

_________________________________ 

Appellant James Howard Burns challenges the district court’s decision to 

modify his conditions of supervised release without a hearing and without him 

present. We affirm. 

Mr. Burns was convicted in the district court based on his guilty plea to the 

possession of child pornography. The district court sentenced him to 63 months’ 

imprisonment followed by a term of supervised release that, in relevant part, barred 

him from having contact with children, including his minor daughter, without 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

November 10, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

approval from his probation officer. On direct appeal, Mr. Burns challenged that 

condition and we found plain error, stating “we vacate the restriction that requires 

probation office approval for Mr. Burns to contact his daughter and remand for 

reconsideration of this restriction.” United States v. Burns, 775 F.3d 1221, 1223 

(10th Cir. 2014). 

On remand, the district court determined that our decision did not authorize a 

de novo resentencing, limiting its review to reconsideration of the supervised release 

condition “specified by the Tenth Circuit.” R., Vol. 1 at 58. Without a hearing, the 

district court modified the condition to exempt family members under Fed. R. Crim. 

P. 32.1(c)(2), which allows modification of supervised release conditions without a 

hearing if the relief is favorable to the defendant. Mr. Burns brings this appeal 

arguing that the district court erred in not holding the hearing with him present. 

Mr. Burns insists that our decision on direct appeal did allow for resentencing 

because we directed the district court to reconsider the condition and said nothing to 

limit resentencing, and because we “vacated” the condition, leaving nothing for the 

district court to modify. 

Generally, re-sentencing on remand is de novo. United States v. Keifer, 

198 F.3d 798, 801 (10th Cir. 1999). “[D]e novo resentencing permits the receipt of 

any relevant evidence the court could have heard at the first sentencing hearing.” Id. 

(internal quotation marks omitted). The district court, however, is not obligated to 

conduct a de novo re-sentencing. On remand, the court “has the discretion to 

entertain evidence that could have been presented at the original sentencing even on 
3 

issues that were not the specific subject of the remand.” Id. (emphasis added) 

(internal quotation marks omitted). Thus, a court’s decision to limit the scope of 

re-sentencing is reviewed for abuse of discretion. On remand, “unless the district 

court’s discretion is specifically cabined, it may exercise discretion on what may be 

heard.” United States v. West, 646 F.3d 745, 749 (10th Cir. 2011). The district court 

“is to look to the mandate for any limitations on the scope of the remand.” Id. 

Looking at the mandate, we said “reconsideration” and never said 

“resentencing.” Burns, 775 F.3d at 1223. While it is true, as Mr. Burns suggests, 

that not saying “resentencing” does nothing to limit resentencing on remand, the 

words we did use paint a clear picture of our intentions. Our vacatur was of the 

specific restriction of Mr. Burns’ ability to see his minor daughter and did not 

envelop the whole condition on Mr. Burns’ ability to be in contact with minor 

children in general. Thus, the text of our order specifically cabins the district court to 

amend the condition and nothing else on remand. See West, 646 F.3d at 749. When 

the district court did exactly that, it did not abuse its discretion. Accordingly, we 

affirm. 

Entered for the Court 

Timothy M. Tymkovich 

Chief Judge