IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60333

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

KENNETH E. FAIRLEY,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 2:16-CR-3-1

Before SMITH, WIENER, and WILLETT, Circuit Judges. 

PER CURIAM:*

In September 2016, a jury found Defendant-Appellant Kenneth E. 

Fairley guilty of one count of conspiracy to commit theft of government funds 

(Count One) and two counts of theft of government funds (Counts Two and 

Three). The district court sentenced Fairley to concurrent terms of 36 months 

imprisonment and 36 months supervised release plus a $30,000 fine and 

$60,223.95 in restitution. On appeal, we vacated his convictions on Counts 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 27, 2019

Lyle W. Cayce

Clerk

 Case: 18-60333 Document: 00515013881 Page: 1 Date Filed: 06/27/2019
No. 18-60333

2

Two and Three, affirmed his conviction on Count One, affirmed the district 

court’s evidentiary and sentencing rulings, and remanded for “the district court 

to determine whether Fairley’s sentence should change in light of the vacated 

convictions.” United States v. Fairley, 880 F.3d 198, 202 (5th Cir.), cert. denied, 

139 S. Ct. 321 (2018).

On remand, the district court denied Fairley’s request for a resentencing 

hearing and preparation of an updated presentence report because the 

underlying facts considered at sentencing remained the same, and the court 

would have imposed the same sentence if it had considered Count One

separately from Counts Two and Three. The district court determined that the 

only necessary modification to Fairley’s judgment was to reduce the mandatory 

assessment fees from $300 to $100 to reflect the two vacated convictions.

In this appeal, Fairley claims that the district court erred by refusing to 

conduct a full resentencing hearing. He clarifies that he is not challenging the 

outcome of the district court’s determination of his sentence on remand.

We review de novo the district court’s application of a remand order and 

its compliance with the law-of-the-case doctrine or mandate rule. United 

States v. Teel, 691 F.3d 578, 583 (5th Cir. 2012). We have “adopted a restrictive 

rule for interpreting the scope of the mandate in the criminal sentencing 

context.” United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004) (internal 

quotation marks, citation, and brackets omitted). “[O]nly those discrete,

particular issues identified by the appeals court for remand are properly before 

the resentencing court.” Id. (internal quotation marks and citation omitted). 

However, “once an issue is remanded for resentencing, all new matter relevant 

to that issue appealed, reversed, and remanded, may be taken into 

consideration by the resentencing court.” United States v. Marmolejo, 139 F.3d 

528, 530 (5th Cir. 1998).

 Case: 18-60333 Document: 00515013881 Page: 2 Date Filed: 06/27/2019
No. 18-60333

3

Although we did not specifically direct the district court to resentence 

Fairley on remand, Fairley contends that our citation to, and parenthetical 

quotation of, United States v. McRae, 795 F.3d 471, 483 (5th Cir. 2015), in a 

footnote indicated our implied intent that the district court should conduct a 

resentencing hearing. See Fairley, 880 F.3d at 202 & n.1. However, our 

opinion in McRae did not specifically require a sentencing hearing on remand 

in that case. See McRae, 795 F.3d at 473, 483-84.

On remand, the district court complied with our explicit mandate in 

Fairley. The court modified Fairley’s sentence rather than imposing a new 

sentence, so Fairley is not entitled to a full resentencing hearing or any 

procedural accompaniments. See United States v. Clark, 816 F.3d 350, 353-58 

(5th Cir. 2016); United States v. Erwin, 277 F.3d 727, 728-29 (5th Cir. 2001).

AFFIRMED.

 Case: 18-60333 Document: 00515013881 Page: 3 Date Filed: 06/27/2019