UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

LEROYA COZAD, 

 Defendant - 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 doctrine known as “law of the case.” 

United States v. Dutch, 978 F.3d 1341, 1345 (10th Cir. 2020). The 

law-of-the-case-doctrine provides the springboard for the “mandate rule,” 

which requires the district court 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 October 28, 2022. We grant 

the motion to expedite. To expedite consideration, we have dispensed with 

oral argument. See Motion to Expedite Appeal at 2 ¶ 5 [“[I]f the Court 

wishes to dispense with oral argument to avoid delay in resolving the case, 

the case can be submitted on the briefs without oral argument.”). 

Our order and judgment does not constitute binding precedent except 

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

But the order and judgment may be cited for its persuasive 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

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mandate consists of the instructions 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 stemmed from the defendant’s guilty plea on a 

charge of manufacturing counterfeit Federal Reserve Notes. 18 U.S.C. 

§ 471. The conviction triggered a guideline range of 24 to 30 months, and 

the district court imposed a sentence at the midpoint: 27 months. In 

imposing this sentence, the district court explained that it would start 

midway through the guideline range (rather than the low end) because the 

defendant had not entered into a plea agreement. 

The defendant appealed. In defending the sentence, the government 

argued that the district court could legitimately start at the guideline 

range’s midpoint (rather than the low end) by (1) assuming that a plea 

agreement would include an appeal waiver and (2) considering the absence 

of an appeal waiver. United States v. Cozad, 21 F.4th 1259, 1264 

(10th Cir. 2022). We disagreed, remanding for 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 resentenced the defendant to the same 

sentence: 27 months. This time, the district court relied on the absence of 

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an appeal waiver to start 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, arguing that the district court did not follow our 

mandate. We conduct de novo review in determining 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 addressing the government’s argument for 

affirmance. See United States v. Cozad, 21 F.4th 1259, 1264 (10th Cir. 

2022) (“The government argues that a district court may consider the 

absence of a plea agreement because such agreements often include certain 

conditions, such as appellate waivers.”). Even if the discussion had been 

tangential, however, the “government acknowledges that the district court 

was bound to follow [this discussion] under the mandate rule.” 

Government’s Resp. Br. at 14. 

The defendant points 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–

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65.1

 The district court apparently misunderstood our prior opinion in two 

respects. R. vol. 3, at 101 (expressing confusion 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 point is the applicable guideline 

range). But we held that the 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 (10th Cir. 2018), that an 

appeal waiver may sometimes be relevant,] the presence of a 

waiver in an existing plea agreement is fundamentally different 

than the absence of an appeal waiver in an agreement that never 

happened and whose terms remain purely hypothetical. When the 

parties reach an agreement, a district court 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 responsibility. By contrast, when 

the defendant enters an open plea, the court may not know 

whether any plea agreement was offered, let alone under what 

terms. Indeed, there is no evidence in this case that an appellate 

waiver was ever discussed. In these circumstances, 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). 

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Second, the district court said that we had remanded for lack of an 

adequate explanation. R. vol. 3, at 102. The court misunderstood our 

remand. We didn’t question the adequacy of the explanation, for the 

district court explained itself at the first sentencing. The 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 guideline 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. There the government argued 

that “if a sentencing court [could] grant additional leniency in recognition 

of conditions in a plea agreement that show acceptance of responsibility,” 

like an appeal waiver, “it follows that the court [could] view a defendant’s 

refusal to accept such conditions as demonstrating a corresponding lack of 

acceptance and withhold that leniency.” Cozad, 21 F.4th at 1264. 

We rejected this argument, explaining that “the presence of a waiver 

in an existing plea agreement is fundamentally different than the absence 

of an appeal waiver in an agreement that never happened 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 agreements and withhold it from those who 

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do not.” Id. at 1266. Through these conclusions, we rejected the district 

court’s distinction between punishment and withholding leniency. Either 

way, we explained, the district court couldn’t impose a longer term than it 

would have otherwise imposed if the defendant had waived an appeal. Id. 

at 1262–63, 1264–66. The district court thus (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 bears 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 harmlessness is preponderance of the evidence). In our 

view, the government 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 prohibition in the prior appellate opinion, the district court 

explained that it was imposing a sentence of 27 months even though a 

defendant who had waived an appeal would have received a milder 

sentence. That explanation repeats the one rejected in the prior opinion, 

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and the government hasn’t shown how we could consider the error as 

harmless. 

We remand for resentencing before a different judge. In doing so, we 

express no criticism of the district judge. We simply conclude that it would 

be beneficial for another district judge to apply a fresh perspective to 

avoid the appearance that the new sentence 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 difficulty for the 

original judge to put aside previously 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 timely petition is filed, the mandate shall issue the 

following business day. 

Entered for the Court 

Robert E. Bacharach 

Circuit Judge 

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