UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Pl aintiff - Appellee,

v. LEROYA COZAD,
De fendant - Appellant. No. 22-3050 (D.C. No. 6:19- CR-10123-EFM-1) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , BACHARACH , and PHILLIPS , Circuit Judges.

________________ _________________ This appeal implicates the doct rine known as “law of the case.” United States v. Dutch , 978 F.3d 1341, 1345 (10t h Cir. 2020). The law-of-the-case-doctrine pr ovides the spri ngboard for the “m andate rule,” which requires the district cour t to carry out our “mandate.” Id. Our

* Ms. Cozad moved to expedite the appeal, stating that it would become moot if we didn’ t issue a decision by Oc tober 28, 2022. We grant the motion to expedite. To expedite co nsideration, we have dispensed with oral argument. See Motion to Exped ite Appeal at 2 ¶ 5 [“[I]f the Court wishes to dispense with oral argument to avoid dela y in resolving the case, the case can be submitted on the br iefs without or al argument.”). Our order and judgment does not constitute bi nding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgmen t may be cited for its persuasi ve value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### June 24, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 22-3050 Document: 010110701392 Date Filed: 06/24/2022 Page: 12 mandate consists of the in structions to the district court, which often come from our entire discussion. Proctor & Gamble Co. v. Haugen , 317 F.3d 1121, 1126 (10th Cir. 2003). The parties disagree on how to apply the mandate rule to the resentencing of the defendant, Ms. Leroya Cozad. The resentencing stem med from the defendant’s guilty plea on a charge of manufacturi ng counterfeit Federal Rese rve Notes. 18 U.S.C. § 471. The conviction trig gered a guideline range of 24 to 30 months, and the district court imposed a senten ce at the midpoint: 27 months. In imposing this sentence, the district court explained that it would start midway through the guideline range (rath er than the low end) because the defendant had not entered into a plea agreement. The defendant appealed . In defending the se ntence, the government argued that the district court could legitimately star t at the guideline range’s midpoint (rather than the low end) by (1) assumi ng that a plea agreement would include an appeal wa iver and (2) considering the absence of an appeal waiver. United States v. Cozad , 21 F.4th 1259, 1264 (10th Cir. 2022). We di sagreed, remanding fo r resentencing after concluding that the district court can’ t start higher than it otherwise would have started just because the defendant hadn’t entered into a plea agreement or waived an appeal. Id. at 1262–63, 1264–66. On remand, the district court rese ntenced the defend ant to the same sentence: 27 months. This time, the di strict court relied on the absence of Appellate Case: 22-3050 Document: 010110701392 Date Filed: 06/24/2022 Page: 23 an appeal waiver to st art at the guideline range’s midpoint and to decline to consider a sentence at the low end. R. vol. 3, at 102–103, 107–109. The defendant appeals again, ar guing that the district court did not follow our mandate. We conduct de novo review in determinin g whether the district court complied with our mandate. United States v. Dutch , 978 F.3d 1341, 1345 (10th Cir. 2020). The government argues that our prior discussion of an appeal waiver was “tangential.” Government’s Resp. Br. at 3. The discussion wasn’t tangential because we were addressi ng the government’s argument for affirmance. See United States v. Cozad , 21 F.4th 1259, 1264 (10th Cir. 2022) (“The government argue s that a district court may consider the absence of a plea agreemen t because such agreements often include certain conditions, such as appellate waivers. ”). Even if the discussion had been tangential, however, the “government ac knowledges that th e district court was bound to follow [t his discussion] under the mandate rule.” Government’s Resp. Br. at 14. The defendant point s out that in the prior appeal, we held that the district court can’t start higher than it otherwise would have started because the defendant hadn ’t waived an appeal. Cozad , 21 F.4th at 1264– Appellate Case: 22-3050 Document: 010110701392 Date Filed: 06/24/2022 Page: 34 65. 1 The district court apparently mis understood our prio r opinion in two respects. R. vol. 3, at 101 (expressing confus ion from the remand). First, the district court said that we had apparently erred in assuming that the starting point for the sentence must be at the low end of the guideline range. We didn’t assume or suggest that. The court can start anywhere within the guideline range. See Gall v. United States , 552 U.S. 38, 49 (2007) (stating that the starting po int is the appli cable guideline range). But we held that th e district court can’t pick the starting spot based on the failure to enter a plea agreement or waive an appeal. Cozad , 21 F.4th at 1262–63, 1264–66.

1 There we said: Furthermore, although we held in [ United States v. Tena-Arana , 738 F. App’x 954, 961–64 (1 0th Cir. 2018), that an appeal waiver may sometimes be relevant,] the presence of a waiver in an existing plea agre ement is fundamen tally different than the absence of an appeal waiver in an agreement that never happened and whose te rms remain purely hypo thetical. When the parties reach an agre ement, a district co urt can evaluate the terms, including any waivers, in the context of the agreement as a whole to determine the degree to which the waivers may show some additional acceptance of res ponsibility. By contrast, when the defendant enters an open plea, the court may not know whether any plea agre ement was offered, le t alone under what terms. Indeed, there is no evidence in this case that an appellate waiver was ever discu ssed. In these circum stances, without more information, it is unreasonable to penalize the defendant for the absence of an appellate waiver in a nonexistent agreement. United States v. Cozad , 21 F.4th 1259, 1264–65 (10th Cir. 2022). Appellate Case: 22-3050 Document: 010110701392 Date Filed: 06/24/2022 Page: 45 Second, the district cour t said that we had rema nded for lack of an adequate explanation. R. vol. 3, at 102. The court misunderstood our remand. We didn’t questi on the adequacy of th e explanation, for the district court explained itself at the first sentencing. Th e problem was the content of the explanation, which showed improper reliance on the lack of a plea agreement or appeal waiver. Cozad , 21 F.4th at 1262–65. The district court explained that it wasn’t punishing the defendant for failing to waive an appeal. In the court’s view, it was just declining to start lower in the guide line range because the defendant hadn ’t agreed to an appeal waiver. R. vol. 3, at 108. But this is precisely the same argument that the government gave in the prior appeal. Ther e the governm ent argued that “if a sentencing cour t [could] grant a dditional leniency in recognition of conditions in a plea ag reement that show acceptance of responsibility,” like an appeal waiver, “it follows that the court [could] view a defendant’s refusal to accept such c onditions as demonstratin g a corresponding lack of acceptance and withhold that leniency.” Cozad , 21 F.4th at 1264. We rejected this argumen t, explaining that “the presence of a waiver in an existing plea agreement is fundamentally different than the absence of an appeal waiver in an agreemen t that never happen ed and whose terms remain purely hypothetical.” Id. (emphasis in original). And we expressly concluded that a district court can’t “extend ‘additional leniency’ to defendants who enter into plea agreemen ts and withhold it from those who Appellate Case: 22-3050 Document: 010110701392 Date Filed: 06/24/2022 Page: 56 do not.” Id. at 1266. Through these conclusions, we rejected the district court’s distinction between punishmen t and withholding leniency. Either way, we explained, the district court couldn’t impose a l onger term than it would have otherwise imposed if the defendant had waived an appeal. Id. at 1262–63, 1264–66. The district court th us (unintentionally) failed to carry out our mandate by resentencing the defendant to 27 months at least in part because she hadn’t waived an appeal. The government argues that even if the district court had erred, the error would have been harmless. The government bear s the burden of proving harmlessness by a preponderance of the evidence. See United States v. Lang , 405 F.3d 1060, 1064–65 (10th Cir. 2005) (review for harmlessness is appropriate for failure to comply with the mandate rule); United States v. Burris , 29 F.4th 1232, 1238 (10th Cir. 2022) (stating that the standard for harmless ness is preponderance of the evidence ). In our view, the governmen t hasn’t satisfied this burden. Even if the district court had disagreed with the prior appellate decision, our opinion prohibited consideration of the lack of an appeal waiver. United States v. Dutch , 978 F.3d 1341, 1345 (10th Cir. 2020). Despite that prohib ition in the prior appellate op inion, the district court explained that it was impo sing a sentence of 27 months even though a defendant who had waived an appeal would ha ve received a milder sentence. That explanatio n repeats the one rejected in the prior opinion, Appellate Case: 22-3050 Document: 010110701392 Date Filed: 06/24/2022 Page: 67 and the government hasn’t shown how we could c onsider the error as harmless. We remand for resentencing before a different judge. In doing so, we express no criticism of the district judg e. We simply conc lude that it would be beneficial for another district j udge to apply a fresh perspective to avoid the appearance that the new senten ce is tainted by consideration of the defendant’s failure to enter into a plea agreement or waive an appeal. See Mitchell v. Maynard , 80 F.3d 1433, 1450 (10th Cir. 1996) (requiring consideration of the “appearance of justice” and the di fficulty for the original judge to put aside previous ly expressed views (internal quotation marks omitted)). Given the expedited nature of this appeal, any petition for panel rehearing or rehearing en banc must be filed within five days from the date of this decision. If no ti mely petition is filed, the mandate shall issue the following bu siness day. Entered for the Court

Robert E. Bacharach Circuit Judge Appellate Case: 22-3050 Document: 010110701392 Date Filed: 06/24/2022 Page: 7