Revised, January 27, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-41423

UNITES STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOMMIE HASS,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Texas, Tyler Division

December 29, 1999

Before KING, Chief Judge, JONES, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

The issue before us is w het her the district court on remand erred when it precluded the

appellant, Tommie Hass (“Hass”), from raising the issue o f drug quantity which he failed to raise

during his init

ial appeal. For the reasons set forth below, we affirm the district court’s ruling and find

that Hass was foreclosed from challenging drug quantity at resentencing.

FACTUAL AND PROCEDURAL HISTORY

Hass was convicted of conspiring to manufacture and distribute methamphetamine in violation

of 21 U.S.C. § 846. In the Presentence Investi gati on Report (“PSR”) prepared for Hass’2

sentencing, the probation officer concluded that Hass and his co-conspirators possessed at least 26.8

kilograms of methamphetamine during the course of this conspiracy. The PSR stated that this amount

of methamphetamine attributed to Hass was a “very conse rvat ive estimate” of what he actually

distributed. Hass filed an extensive memorandum detailing his objections to the PSR which included:

1) the possible imposition of a life sentence, 2) the calculation of drug quantities attri buted to him,

and 3) the assessment of his criminal history. The government filed a response to Hass’ objections,

including a response to Hass’ claim that the drug quantity attributed to Hass had been wrongly

calculated.

At sentencing, the district court heard arguments from the government and Hass regarding

the PSR’s recommendation that Hass be sentenced to a life sentence under 21 U.S.C. § 841(b)(1)(a)

(“three strikes provision”) because he had committed two prior felonies. The district court also found

that Hass’s objections to drug quantity, and computation of his criminal history were without merit.

Following the arguments by both counsel on application of the three strikes provisi on, the di stri ct

court adopted the PSR’s findings.

In his init ial appeal to this court Hass argued that the life sentence based on the three strikes

provision was based on the erroneous finding that he had two final felony convictions. We upheld

Hass’ conviction in, United States v. Hass , 150 F.3d 443 (5 th Cir.1998). However, we vacated the

life sentence imposed on him under the three strikes provision. We found that Hass was not eligible

for a life sentence under the three strikes provision because his two prior convictions were not final

at the time the present violations were committed. Id. at 450. This court then remanded the case for

resentencing. D uring his init ial app eal to this court Hass di d not put forth the i ssue of the drug

quantities attributed to him in the original PSR.3

On remand, the case was assigned to a new jud ge for resentencing. At resentencing Hass

argued that the quantity of drugs attributed to him in the PSR was too high. The district court

declined to address this drug quantity argument. The district court concluded that the only issue on

remand from this court was to res e ntence Hass without application of the three strikes provision.

Thus, the district court adopted the findings on drug quantity from the original PSR, and enhanced

Hass’s sentence based on these findings. Hass was sentenced to 240 months imprisonment and 5

years supervised release.

DISCUSSION

Generally, review of a sentence is confined to determining whether a sentence was imposed

in violation of law, as a result of the incorrect application of the Sentencing Guidelines. S ee United

States v. Ashburn

, 38 F.3d 803, 807 (5 th Cir. 1994). However, the issue before us is not whether the

district court applied the guidelines correctly, but whether the district court erred when it denied Hass

an evidentiary hearing on drug quantity. We review the denial of an evidentiary hearing for abuse of

discretion. U nited States v. Henderson

, 19 F.3d 917, 927 (5 th Cir.), cert. denied,--- U.S.

--- , 115

S.Ct. 207, 130 L.Ed.2d 137 (1994).

Hass argues that the district court erred when it failed to hear his claim regarding the quantity

of drugs att ribut able to him for sentencing purposes. Specifically, he argues that because his first

appeal was from the district court’s imposition of a life sentence based on the three strikes provision

the issue regarding drug quantity was irrelevant, and he had no incentive to raise it. According to

Hass, the i ssue o f drug quantity only became relevant after we found that the district court had

erroneously sentenced him under t he t hree strikes provision, and remanded for resentencing. The

government counters that the district court correctly precluded Hass from raising the drug quantity4

issue on remand because Hass had an opportuni ty to raise the issue in his init ial appeal, but declined

to do so. Thus, the government asserts that Hass was confined to raising only those issues which

arose from the scop e o f o ur previous remand order. After a careful review of the record and our

circuit’s precedent, we agree with the government’s position.

The present case is subject to this court’s ruling in United States v. Marmolejo

, 139 F.3d 528

(5 th Cir.1998) (“Marmolejo II”). In that case, Marmolejo was found guilty of possession with intent

to distribute cocaine and marihuana, co nspiracy to launder monetary instruments, and accepting

bribes as a public o fficial. S ee Marmolejo II

, 139 F.3d at 529. The PSR recommended a base offense

level o f 38, and base level enhancements for: 1) use of a firearm during the transport of drugs, 2)

abuse of his position of public trust as an Immigration and Naturalization services agent, and 3)

obstruction of justice. See Id. Marmolejo objected to the enhancements based on possession of a

firearm and obstruction of justice. Id. The district court declined to enhance Marmolejo’s sentence

for possession of a firearm, and reduced his se nt ence for acceptance of responsibility and minor

participation. Id. However, the district court did enhance the sentence for obstruction of justice and

abuse of position. Id.

Both the government and Marmolejo appealed the district court’s judgment. Marmolejo only

challenged th e sufficiency of the evidence for his convictions. I d. The government appealed the

district court’s failure to enhance Marmolejo’s s ent ence for possession of a firearm, and the

reduction of Marmolejo’s sentence for acceptance of responsibility and minor partic ipation. I d.

Marmolejo did not raise on appeal the issue of the district court’s sentence enhancement for

obstruction of justice. This court upheld Marmolejo’s conviction. However, we found in favor of

the government’s position that the district court had erred by not imposing a sentence enhancement1 Marmolejo a lso so ught to introduce evidence on acceptance of responsibility, which the

district judge declined to hear. The court found that additional evidence on the issue would not

change the matter, since statements made by Marmolejo at sentencing as well as existing evidence

was enough to find that acceptance of responsibility was not appropriate. See Marmolejo II

, 139 F.3d

at 529-530.

2 As we recognized in Marmolejo II

, the scope of a remand for resentencing has caused a

significant circuit split. Under the majority view, sentencing following remand should be conducted

de novo, and thus a district judge is not limit ed to reviewing only those issues related to the remand

order. S ee Marmolejo II

, 139 F.3d at 530. (citing United States v. Smith

, 116 F.3d 857 (10 th Cir.

1997); United States v. Jennings

, 83 F.3d 145 (6 th Cir. 1996); United States v. Atechoriva

, 69 F.3d

679 (6 th Cir. 1996); United States v. Ponce

, 51 F.3d 820 (9 th cir. 1995); United States v. Cornelius

, 968 F.2d 703 (8 th Cir. 1992). By contrast, under the minority view, “only those discrete, particular

issues identified by the appeals court on remand are properly before the resentencing court,” i.e., a

waiver approach. S ee id. (citing United States v. Whren

, 111 F.3d 956 (D.C. Cir . 1997), U nited

States v. Parker , 101 F.3d 527 (7 th Cir. 1996).

5 for possession of a firearm. S ee United States v. Marmolejo

, 106 F.3d 1213 (5 th Cir. 1997). We

vacated Marmolejo’s sentence and remanded it to district court for resentencing consistent with our

opinion.

At resentencing, Marmolejo sought to introduce evidence on the obstruction of justice issue.

The district court declined to hear the evidence because the district court’s original finding on that

issue had not b een raised on appeal. 1 M armolejo II

, 139 F.3d at 530. Marmolejo appealed the

district court’s refusal to hear the obstruction of jus t ice evidence. He argued that a resentencing

hearing should be conducted de novo to hear new evidence on all sentencing iss ues. Id. We

expressly rejected this argument and held that the district court properly refused to hear new evidence

at resentencing because the scope of this court’s remand order was limit ed. 2 Clarifying the scope of

this court’s remand order we stated:

The only issues on remand properly before the district court are those

which arise out of the correction of the sentence ordered by this court.

In short, the resentencing court can consider whatever this court directs–

no more, no less. All other issues not arising out of this court’s ruling6

and not raised in the appeals court, which could have been brought in the

original appeal, are not proper for reconsideration by the district court

below.

Marmolejo II

, 139 F.3d at 531

.

The facts of the present case are strikingly similar to those in Marmolejo II . In his original

objections to the PSR, Hass specifically objected to the drug quantities attributable to him. At the

original sentencing the district court stated that it had considered Hass ’s objecti on to the drug

quantities and found these arguments to be without merit, and refused to reduce Hass’s base offense

level. Hass was obviously aware of this adverse ruling , yet did not challenge the district court’s drug

quantity finding during his init ial appeal. As a result, although the drug quantity issue was fully

presented and reviewed by the district court this court’s decision only considered Hass’s arguments

on the three strikes provision. Our remand order only directed the district court to resentence Hass

without applying the three strikes provision. Therefore, the district court on remand properly

followed our Marmolejo II instructions to only address “issues arising out of the correcti on of the

sentence ordered by [the appellate] court.” Marmolejo II , 139 F.2d at 531.

Hass specifically contends that he did not have an incentive to raise the drug quantity issue

in his init ial appe al because t he application of the three strikes provision made drug quantity

irrelevant. Hass’s argument is similar to an argument raised by the defendant in U nite d States v.

Tic chiarelli , 171 F.3d 24, 30 (1 s t Cir. 1999). In T icchiarelli

, the defendant claimed that he did not

challenge drug quantity at his original sentencing because even if the drug quantity had been reduced

it would not have affected the length of his sentence. The defendants original sentence was vacated

and remanded to the district court for resentencing. Therefore, at resentencing the defendant sought

to introduce evidence of drug quantity. The First Circuit concluded that whether a defendant waived7

an issue for consideration at resentencing is determined by whether the defendant had an incentive

to raise that issue in the prior proceedings. Id. at 33.

However, the record in the present case is different fr o m t he circumstances in T icchiarelli

.

In the present case, Hass raised the issue of drug quantity during his original sentencing. Hass simply

failed to pursue this issue on appeal. Therefore, Hass cannot claim that he felt the drug quantity issue

was irrelevant because he submitted objections to these findings at the district cour t level. A

defendant cannot know which appellate argument might be successful, therefore each contested issue

must be appealed. Countless criminal appeals are determined by our court which encompass multiple

bases of relief claimed by appellants. Hass’s circumstance is no different. Because Hass had another

appealable issue which

turned out to be successful, does not mean that the issue of drug quantity was

not germane and appealable. Therefore, we reiterate our conclusion from M armolejo II that all issues

not arising out of the re mand o rder which could have been brought in the original appeal are not

proper for reconsideration by the district court below at resentencing. M armolejo II

, 139 F.3d at 531

.

CONCLUSION

We find that our holding in Marmolejo II is controlling, and that the district court properly

precluded Hass from raising the drug quantity issue on remand. Accordingly, we AFFIRM the

district court’s ruling.

AFFIRMED.8