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 challenge s the district c ourt’s decision to modify his conditions of supervised re lease without a hear ing 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 dist rict court sentenced him to 63 months’ imprisonment followed by a term of supervised release that, in re levant part, barred him from having contact with children, including his minor daughter, without

* After examining the briefs and appellate record, th is 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 Court2 approval from his probation officer. On di rect appeal, Mr. Bu rns challenged that condition and we found plain error, stati ng “we vacate the restri ction that requires probation office approval for Mr. Burns to contact his daughter and remand for reconsideration of th is 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 th e supervised release condition “specified by the Tent h 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 fa vorable to the defendant. Mr . Burns brings this appeal arguing that the district cour t erred in not holding the h earing 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 cour t could have heard at the first sentencing hearing.” Id

. (internal quotation marks omitted). The dist rict court, however, is not obligated to conduct a de novo re-sen tencing. On remand, the court “has the discretion to entertain evidence that could have been pr esented at the original sentencing even on3 issues that were not the spec ific 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 disc retion. On remand, “unless the district court’s discretion is specifical ly 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 lim itations 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 nothi ng 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 or der 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