Revised October 5, 1998

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 96-40569

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee-Cross

Appellant,

versus

RUBEN GIL BECERRA,

Defendant-AppellantCross-Appellee,

and

AURELIANO SALINAS, SR; AURELIANO SALINAS, JR;

ALBERICO SALINAS; VICTOR LEAL; JORGE LUIS

RAMIREZ,

Defendants-CrossAppelees.

Appeals from the United States District Court

for the Southern District of Texas

September 16, 1998

Before WIENER, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

After a long and som ewhat distorted journey, this case now

reaches us on appeal for the second time. S ee United States v.1 Throughout the trial and in the prior opinion, the

parties referred to Alberico Salinas as “Beco.” For the sake of

clarity, this opinion will do the same.

-2- Leal

, 74 F.3d 600, 607-08 (5th Cir. 1996). In the first appeal, a

prior panel affirmed the convictions of Ruben Gil Becerra

(“Becerra”), Aureliano Salinas, Sr. (“Salinas, Sr.”), Aureliano

Salinas, Jr. (“Salinas, Jr.”), Alberico Salinas (“Bec o”) 1 , Victor

Leal (“Leal”), and Jorge Luis Ramirez (“Ramirez”) for conspiracy to

possess with intent to distribute in excess of 1,000 kilograms of

m arijuana (Count 1) and for possession with intent to distribute

the same amount of that drug (Count 2), in violation of 21 U.S.C.

§§ 846 and 841(a)(1). The prior panel, however, reversed and

vacated the sentences that the district court imposed, concluding

that the district court committed clear error in attributing to the

defendants the 3,160 pounds of marijuana that police discovered in

a shed on the ranch where defendant Becerra unloaded a tankertrailer full of marijuana.

Our opinion “remand[ed ] to the district court for

resentencing, attributing to the defendants the amount of marijuana

related to the testimony at trial.” I d. at 607-08. None of the

parties disputed that the testimony at trial put the weight of the

expected marijuana delivery at around 1,100 pounds. S ee id. On

remand, however, the government argued that the district court was

not bound by our prior opinion to resentence the defendants based

on “the testimony at trial” because the prior panel did not have a-3-

transcript of Becerra’s sentencing hearing or his confession to the

FBI, both of which supported the district court’s conclusion that

the defendants transported all 3,160 pounds of marijuana discovered

in the shed. Nonetheless, the district court determined that it

was bound by our prior opinion to resentence each of the defendants

based on 1,100 pounds of marijuana, the amount that the

confidential government informant (“confidential informant” or

“CI”) had testified he believed would be delivered.

The government now appeals, alleging that the district court

erred in determining that it was bound by o ur prior opinion to

resentence the defendants using 1,100 pounds of marijuana, and that

we should apply an exception to the law of the case doctrine to

reverse our earlier dete rmination in L eal

. The government also

argues that, in any event, the district court lacked jurisdiction

to resentence Leal. Becerra cross-appeals, claiming that the

district court erred in resentencing him without granting a fourlevel, minimal-participant reduction and a three-level, acceptanceof-responsibili ty reduction. We affirm. Although we agree with

the government that the now-supplemented record would have

adequately supported the district court’s decision to sentence the

defendants ba sed on 3,160 pounds of marijuana, the exceptions to

the law of the case doctrine do not apply to the case at hand. We

similarly reject Becerra’s claims of error.

I-4-

While our prior opinion in Leal sets out most of the facts of

the underlying drug conspiracy, the parties failed to provide the

prior panel with significant portions of the district court record.

Con sequently, the panel did not have before it several important

pieces of information relevant to the validity of the district

court’s sentencing decision. Accordingly, we recite the facts as

they relate to the is sues currently on appeal and point out the

critical facts that the prior panel did not have an opportunity to

consider.

The dr ug conspiracy for which the defendants were convicted

culminated on November 5, 1991, with defe ndants Becerra and Leal

driving a tractor-trailer full of marijuana to a ranch north of San

Antonio (“Kirchner Ranch”). Because the confidential informant had

given the police all the details of the planned delivery, drug

enforcement agents ha d the trailer under constant surveillance

throughout this day. After the trailer arrived at the ranch,

Becerra unloaded the marijuana into a shed on the Kirchner Ranch.

The police arrested Becerra and Leal as they drove the empty

trailer fro m the ranch. The police then entered the ranch and

discovered 3,160 pounds of marijuana in the shed. The police

subsequently arrested all of the defendants and indicted them for

their actions in the drug conspiracy.

Of utmost importance in this case is the fact that Becerra

g ave two detailed statements to Federal Bureau of Investiga tion2 The defendants were released so that the government could

continue its investigation into related drug conspiracies.

-5- (“FBI”) agents in which he admitted that he was told on at least

two occasions that the November 5th delivery would total 3,000

pounds. Another significant fact is that Becerra confessed to

Judge Kazen in his original sentencing hearing that the shed was

empty whe n he began unloading the trailer and that some of the

defendants )) after trial, but before sentencing )) told him to say that

the shed was full of marijuana when he arrived. For reasons we

cannot surmise, the government failed to bring either of these

facts to the attention of our prior panel. Not surprisingly,

Becerra similarly failed to raise them with our prior panel.

Because these facts were not considered on the first appeal, we

will set them out in detail here.

A.

In early January 1992, after Becerra and the other defendants

had been released from jail at the request of the U.S. Attorney’s

Office, 2 FBI Agent Mike Rayfield (“Agent Rayfield” or “Rayfield”)

arranged for Becerra to fly from Dallas to San Antonio to meet at

the FBI offices. The FBI paid for Becerra’s plane ticket and Agent

Rayfield met him at the San Antonio airport on Janu ary 18, 1992.

Agent R a yfield, together with another FBI Agent, David

Schmactenberger, interviewed Becerra for several hours. Although

the interview was not tape recorded, Agent Rayfield took detailed

notes of Becerra’s statement (“January 18th statement”). Becerra-6-

provided a complete des cription of the November 5th drug

conspiracy. Becerra’s statement indicates that just prior to the

delivery he was told by Michael Goerndt (who is not a defendant in

this case) that the delivery would be increased from 800 pounds to

3,000 pounds:

On Tuesday, November 5, 1992, BECERRA picked up GOERNDT

at GOERNDT’s house at approximately 11:00 a.m. Between

3:00 and 4:00 p.m., GOERNDT was paged by a guy from

Laredo. BECERRA advised that GOERNDT then called Laredo

from a pay phone. Upon completion of the call, GOERNDT

told BECERRA “were in luck, 800 pounds is on the way.”

GOERNDT told BECERRA that they were to meet the load at

10:00 p.m.

BECERRA advised that GOERNDT was paged again at 7:00

p.m. GOERNDT made a phone call and at the completion of

the call told BECERRA they were to meet ERNIE, PABLO, and

ROGELIO at a McDonalds and 3,000 pounds of marijuana was

on the way. GOERNDT further told BECERRA that 2,000

p ounds was for PABLO and 1,000 pounds was for s omeone

else.

B ecerra’s statement also indicates that during the November 5th

delivery, another defendant (Beco) bragged t hat the 3,000 pound

marijuana shipment came from him:

BECERRA advised that once at the motel ROGELIO stayed in

the car (BECERRA’s car) and he, BECERRA, went to the room

and met with a Hispanic male (later identified by BECERRA

in a photo array as ALBERICO SALINAS) who r ode with

BECERRA and ROGELIO as they led the tanker tractor-tailor

to the KIRCHNER ranch. During the drive, ALBERICO

constantly bragged about his marijuana trafficking and

indicated the 3,000 pounds to be delivered came from him.

Becerra also admitted to Agent Rayfield that he (Becerra) was the

one who unloaded the marijuana from the trailer into a shed located

next to the main residence. After the interview was finished,

Agent Rayfield took Becerra back to the airport and told Becerra to3 Becerra never testified at trial and did not receive the

benefit of this deal.

-7- “stay in touch.”

On June 9, 1993, after Becerra was rearrested and incarcerated

in Mansfield Correctional Facility, Agent Rayfield, together with

Drug Enforcement Agency Agent Jeffrey Jackson (“Agent Jackson ”),

met with Becerra to go over his January 18th statement. Agent

Rayfield r ead Becerra his Miranda rights and Becerra signed a

statement explaining that he did not have a lawyer and that he did

not wish to have one present at that time. Agent Jackson then told

Becerra that he would get no more than five years time to serve if

he agreed to fully cooperate and testify in this case. 3 Becerra

told the agents that he was hoping for probation, but Agent Jackson

informed Becerra that probation was not possible. The agents and

Becerra reviewed Becerra’s statement sentence by sentence, making

amendments and changes where Becerra remembered different details.

Becerra again a cknowledged that the statement was his complete

recollection of the events surrounding the November 5th drug bust.

Becerra did not state that there was already a substantial amount

of marijuana in the shed when he began unloading the trailer (let

alone 2,000 pounds), and he did not retract his state ments

acknowledging that he was told the shipment totaled 3,000 pounds.

Before trial, Becerra sought to have his statements suppressed

on the ground that they had been taken in violation of his

constitutional rights. The district court held an extensive-8-

suppressi on hearing in September 1993 at which Agents Rayfield,

Schm actenberger, and Jackson, as well as Becerra himself,

testified. At the suppression hearing, Becerra contended that the

agents had promised him that he would not be prosecuted if he

cooperated with the government and that the agents never read him

his Miranda rights at the Jun e 9th meeting. Becerra did not

contend before the district court )) and for that matter, still does

not contend before this Court )) that anything in his statements to

the FBI was materially untrue. At the suppression hearing, Becerra

acknowledged that his statements were “very detailed” and that he

told the agents “ everything that [he] knew” about the drug

conspiracy. Becerra also admitted to Judge Kazen that he signed

the waiver of rights form at the June 9th interview, which stated

that he did not have an attorney and that he was willing to talk to

the agents without one present. Becerra nonetheless maintained

that the agents had forged his signature on a different portion of

the waiver form and that he only agreed t o speak to the agents

because they promised he would not be prosecuted.

Judge Kaze n found that Becerra’s testimony was not credible

and explicitly rejected his assertion that the agents had promised

him that he would not be prosecuted. Judge Kazen accordingly held

that Becerra’s statements to the FBI were voluntary and would not

be suppressed at trial. As we discuss below, however, the

government did not introduce Becerra’s statements into evidence at4 Because Becerra’s statements were not physically

introduced into evidence at t rial, the district court instructed

the jury as follows:

There is also, and you heard testimony, that one of

these defendants, Mr. Becerra, later, after the fact,

made certain oral statements tending to admit his guilt,

his involvement in this affair. Incidentally, do not

expect

. . . and you may be confused about this. Do not

expect to read that statement because it wa s not

admitted. It was not offered in evidence and properly

so. Because, according to the testimony, it is not a

signed sta tement by him, it is not a handwritten

statement by him. What you have is the agent telling you

what

. . . and there, it’s the agent’s credibility you

have to weigh. He is telling you as a witness under oath

that Becerra told him these things.

Now, he claims to have made notes of those, but the

notes themselves are not the evidence. It’s his

recollection of the

. . . It’s his testimo ny that’s

really evidence. Of course, he can be challenged by his

notes, and that’s why we even had that recess, to be sure

that everybody had seen the notes and asked him whatever

questions they want to ask him, but I’m just telling you,

don’t expect to read a statement ‘cause there isn’t one

in evidence. But to the extent that the Agent

[Rayfield], I believe, has testified here that [Becerra]

told him all of these things, you have to decide what

weight to give that.

(ellipses in original).

5 This omission is particularly puzzling in light of the

fact that Becerra’s motion to suppress his FBI statements was one

of the primary issues before trial and in the first appeal.

-9- trial 4 and failed to bring the substance of the statem e nts to the

a ttention of the prior panel in either the first appeal or the

petition for panel rehearing. 5

B

A t trial, the government introduced transcripts of recorded

phone call s between various members of the conspiracy and the6 Although the indictment charged the defendants with

conspiracy to possess in excess of 1,000 kilo grams of marijuana

(approximately 2,200 pounds), the weight of the drug is not an

element of the substantive offense. S ee United States v. Cisneros

, 112 F.3d 1272, 1282 (5th Cir. 1997) (“[T]h is Court has held that

‘[p]roof of the quantity of controlled substances at issue is not

an element of an offense under 21 U.S.C. §§ 841(a) and 846.’”)

(quoting United States v. Montes

, 976 F.2d 235, 240 (5th Cir.

1992)). The weight of the drug is, however, relevant for

sentencing purposes. A ten year mandatory minimum applies where

the amount of marijuana is greater than 1,000 kilograms

(approximately 2,200 pounds), see 2 1 U.S.C. § 841(b)(1)(A)(vii),

while a five year mandatory minimum applies where the amount of

marijuana is between 100 and 1,000 kilograms (approximately 220 -

2,200 pounds). See 21 U.S.C. § 841(b)(1)(B)(vii).

Thu s, the indictment put the defendants on notice that they

could be sentenced under the much more stringent penalties for

-10- confidential informant. The recorded conversations, like Becerra’s

statements to the FBI, see supra at 5, demonstrated that the

defendants discussed the delivery of varying amounts of marijuana

at different times during the course of the conspiracy. The

confidential informant ultimately testified that the defendants

told him that th e plan was to transport about 1,100 pounds of

marijuana from Laredo, Texas to the ranch outside of San Antonio.

All parties conceded that foll owing the defendants’ arrest,

government agents sei zed 3,160 pounds of marijuana from the shed

located on the Kirchner ranch. The defendants produced no evidence

t hat any marijuana was in the shed before Becerra’s delive ry;

indeed, the defendants did not even raise this theory at trial.

Similarly, perhaps because the weight of the marijuana was not an

element of the substantive offense (and thus was not relevant for

the jury), 6 the government produced no witness as to the amountpossessing an excess of 2,200 pounds. Notwithstanding this fact,

the d efendants put on no evidence supporting their belated claim

that 2,000 pounds of marijuana were already in the shed when

Becerra arrived with the trailer-full of marijuana.

-11- actually unloaded from the trailer into the shed.

Although none of the parties introduced Becerra’s statements

into evidence at trial, Agent Rayfield and Agent Jackson testified

at length about his two statements. Rayfield testified that

Becerra had told him that he unloaded the marijuana from the

trailer into the shed and that someone else was supposed to arrive

at the ranch to “split up the three thousand pounds of marijuana.”

Noticeably absent from Rayfield’s testimony about Becerra’s

statement is any suggestion that there was already 2,000 pounds of

marijuana in the shed when he began unloading the trailer:

Prosecutor: Okay. Now, in giving a

statement, did the

defendant Becerra tell

you about the events of

November 5th, 1991?

Rayfield: Yes, he did.

Prosecutor: Okay. What did he say

about that day?

Rayfield: That basically starting

in the morning hours of

that day, he was involved

with several other people

and his function,

supposedly, was to help

unload a load of

marijuana that was coming

up, supposedly, from

Laredo . . . .

* * *-12-

Prosecutor: Did he tell you where he

went then, after being at

the Relay Station Motel?

Rayfield: Yes.

. . . According to

Mr. Becerra, about four

miles south of the ranch,

he got out of his car and

got into the truck with

the driver so that he

could show him exactly

where to go on the ranch,

and that’s what he did.

He led them directly to

the ranch.

Prosecutor: Okay. Did he say whether

or not the tractor

entered the ranch then?

Rayfield: Yes. After they drove

the additional

approximate four miles

and drove into the ranch,

he said they waited about

thirty minutes. They

were expecting some other

people and he was told to

wait. The other people

didn’t show up and so per

the instructions he had

received, they began

unloading the marijuana

from the front two

compartments of the

tanker truck and then

loaded it into a shed

next to a main house on

this ranch. Part of his

instructions were to beep

somebody after the job

was done, because these

other people were

supposed to show up and

begin splitting up the

three thousand pounds of

marijuana

. . . .7 Notably, at the close of the government’s case, Becerra’s

counsel specifically asked the di strict court to read Becerra’s

-13- Prosecutor: W as that the extent of

what he told you about

his activities on

November 5th, 1991?

Rayfield: Yeah, with one exception.

While he was at the

ranch, the person who

rented the ranch showed

up for about a fifteen

minute period of time.

(emphasis added).

Agent Rayfield also testified about the subsequ ent June 9,

1993 meeting th at he had with Becerra. Rayfield stated that the

purpose of the June 9th meeting was “to check the correctness of

the statement [he] had originally received from Mr. Becerra.”

Agent Rayfield testified that he went over the January 18th

statement sentence by sentence with Becerra and that except for

some minor corrections, “his statement remained the same.” Agent

Jackson similarly testified that:

Aft er Becerra was advised of his rights and after Mr.

Becerra signed the [waiver of rights form] and myself and

Agent Rayfield witnessed it, Mr. Becerra was ha nded a

copy of the original interview from January of ‘92. We

asked Mr. Becerra to read the form in its entirety and he

read the form. Once he finished the form, we went line

by line, paragraph by paragraph, page by page and

reviewed the original statements that were taken in the

first interview.

Agent Jackson confirmed that Agent Rayfield’s testimony accurately

reflected the substance of Becerra’s statemen t, and Rayfield

testified that Becerra adopted the written statement as his own. 7January 18th statement: “If the court would indulge the defendant

in reading the statement that Mr. Becerra gave the agents on

January of 1992 . . . .” Counsel further encouraged the court to

“take it under advisement a nd look at the contents of what is

alleged on that exhibit, on that alleged st atement, it’s really

Becerra working for [Goerndt], Michael [Goerndt].”

-14- C

After the jury found the defendants guilty on both counts of

the indictment, attention shifted to sentencing. Oscar Chavez, the

U.S. Probation Officer (“Officer Chavez”), compiled Pre-Sentence

Reports (“PSRs”) for each defendant. Based on Becerra’s detailed

statements to the FBI agents and an interview with Officer Chavez,

the PSRs concluded that the defendants transported the entire 3,160

pounds found at the Kirchner ranch. As Becerra’s PSR indicated,

“[Becerra] made a decision to make a detailed statement to the U.S.

Probation Officer during th e course of the presentence

investigation against the [advice] of his attorney.” Becerra’s PSR

further stated that he “has not denied the factual elements of the

offense

. . . [and] provided complete information to the Government

concerning his own involvement in the offense prior to the trial.”

The PSR noted that Becerra admitted that he “unload[ed] the

marihuana into a storage room adjacent to the ranch house.” A fact

that was not put in the PSRs ) ) and one that may have avoided the

necessity of the remand in this case )) is that Becerra also admitted

to Officer Chavez that the shed was empty and that it contained

only “hay and some dog food” when he began unloading the marijuana8 The fact that Becerra told the probation officer that the

shed was empty was revealed at his April 6th sentencing hearing

before Judge Kazen. See infra at 21-22.

-15- from the trailer. 8

Based on Becerra’s “detailed p re-trial statement to FBI

agents” and his “detailed [post-trial] statement to the U.S.

Probation Of ficer,” the PSR concluded that “Defendant Ruben Gil

Becerra is responsible for participating in transaction number one

of this conspiracy involving the seizure of 3,160 pounds of

marihuana.” Because the drug conspiracy involved more than 2,200

pounds of marijuana (1,000 kilograms), the PSR concluded that there

was a ten year mandatory minimum sentence, see 21 U.S.C. §

841(b)(1)(A), and that the base offense level under the sentencing

guidelines was 32. See U.S.S.G. § 3D1.1. Although the Local Rules

of the Southern District of Texas generally req uire written

objections to place PSR findings in controversy, see, e.g., United

States v. Ruiz

, 43 F.3d 985, 991 & n.13 (5th Cir. 1995); United

States v. Esqueda-Moreno

, 56 F.3d 578, 581 n.3 (5th Cir. 1995); cf.

F ED . R. C RIM . P. 32(b)(6)(D) (“For good cause shown, the court may

allow a n ew objection to be raised at any time before imposing

sentence.”), Becerra did not file written objections to the PSR’s

conclusion that he be sentenced based on 3,160 pounds, nor to the

PSR’s factual finding that he was responsible for the total amount9 If the quantity of marijuana had been 1,100 pounds, the

statutory mandato ry minimum should have been five years, s ee 21

U.S.C. § 841(b)(1)(B)(vii), and the base offense level should have

been 28 under the Sentencing Guidelines. S ee U.S.S.G. § 2D1.1.

Becerra’s only written objection to the PSR, however, was that it

incorrectly determined his criminal history points; this issue is

not relevant on appeal.

10 Salinas, Sr., was the only defendant who contended that

there was less than 3,160 pounds of marijuana transported in the

trailer. He did not, however, support his contention with any

rebuttal evidence, stating in conclusory fa shion only that “the

amount of marihuana seized is not the amount that was transported

-16- of 3,160 pounds of marijuana found in the shed. 9

The PSRs for the remaining defendants similarly concluded that

each defendant be sentenced based on the total amount of marijuana

transported by the defendants, unloaded by Becerra, and recovered

from the shed. Unlike Becerra, each of the remaining defendants

filed written objections to the PSR’s conclusion that he be

sentenced based on 3,160 pounds of marijuana. Significantly,

however, none provided rebuttal evide nce to contradict Becerra’s

admissions that he unloaded all 3,160 pounds of marijuana into the

shed. Indeed, none of the defendants claimed in their written

objections to the PSR that there was already marijuana in the shed

when Becerra began unloading the trailer (as discussed below, this

theory first was arti culated while the defendants were awaiting

sentencing, see infra at 21-22). In fact, with the possible

exception of Salinas, Sr. and Leal, none of the defendants argued

that the November 5th delivery involved any amount less than 3,160

pounds of marijuana. 10on November 5, 1991. All testimony and information reveals that

the amount was 700 to 1,100 pounds.” Leal maintained his innocence

in the offense and objected to the use of 3,160 pounds as follows:

“The defendant through his attorney maintains that he is innocent

in this case and denies any guilt.

. . . The attorney contends

that the evidence at trial showed that the amount of marihuana

involved in this case was 1,100 pounds.”

-17- Instead, the defendants grounded their objections to the PSRs

on their claims that they did not intend to transport 3,160 pounds

of marijuana (not that 3,160 pounds was not transported). For

example, Ramirez’s objection to the PSR simply s tated that he

“should be sentenced at a base offense level that reflects his

knowledge and intent which is 1,100 pounds.” (emphasis added).

Salinas, Jr. similarly grou nded his objection on “the Probation

Officer failing to mention that the negotiations involved 700 to

1,100 pounds of marihuana.” Beco’s objections stated only that

“the evidence presented during the trial talked about transporting

700 to 1,000 pounds of marihuana

. . . [and] there is no indicia of

reliability that the defendant had knowledge that t here was a

larger am ount of marihuana being transported.” (emphasis added).

As these objections demonstrate, the defendants (at least in their

written objections) did not dispute the fact that Becerra unloaded

all 3,160 pounds of marijuana found in the shed.

D

The district court held sentencing heari ngs for Beco, Leal,

Ramirez, and Salinas, Sr. on March 28, 1994. The court

subsequently held a hearing for Salinas, Jr. on April 1, 1994, and-18-

a hearing for Becerra on April 6, 1994. At the sentencing

hearings, the defendants again raised several different theories as

to why they should not be sentenced based on the 3,160 pounds of

marijuana discovered at the shed. At the March 28 hearing,

Ramirez’s attorney argued that he should not be sentenced based on

the 3,160 pounds of marijuana because Ramirez did not have

knowledge that 3,160 pounds was being transported. He explained

that “if Jorge Ramirez contemplated that he was involved in an

1,100 pound count con spiracy that turned out to be a 3,000 pound

conspiracy, I don’t think he ought to be sentenced for 3,000

pounds.” Significantly, Ramirez’s counsel did not argue that only

1,100 pounds was transported and delivered to the shed by Becerra,

or that 2,000 pounds was already in the shed. The district court

rejected Ramirez’s claim.

Counsel for Beco took a different approach at his March 28

sentencing hearing, arguing (for the first time) that 2,000 pounds

of marijuana was already in the shed when Becerra began to unload

the marijuana from the trailer. Beco’s counsel explained that

Becerra had now changed his mind about whether the shed was empty

when he began unloading the trailer, and that Becerra was now

willing to testify that the shed was full of marijuana w hen the

trailer arrived. Judge Kazen rejected Beco’s belated attempt to

call Becerra to testify that the shed was full of 2,000 pounds of

marijuana when he began unloading the trailer and that he had11 Beco’s counsel had the following exchange with Judge

Kazen:

Counsel: The other point, Your Honor,

jus t for clearing the record,

because it would be a point on

appeal for [Beco] Salinas; that

I don’t know whether the

Government would stipulate or

the Court acknowledges that Mr.

Becerra is saying, presently,

that there was some mariju ana

within, other than bringing him

in to say it.

Court: Well, if that’s what you say is his

latest theory --

Counsel: I spoke wi th [the probation

officer] and he said that the

last thing [Becerra] told him

was that there was marijuana or

some bundles there. Didn’t you

just tell me that?

Prosecutor: The first time --

Court: I know

-- I accept what my probation

officer told

-- and I’ll say this for the

record about Becerra, Becerra’s a man

who, w hen he was captured, gave a full

and complete confession, then hired

--

-19- inadvertently forgotten to tell the FBI agents and the probation

officer of this fact during his many confessions.

Judge Kazen stipulated that Becerra was now willing to state

that there was 2,000 pounds in the shed, but stated that he would

not bring Becerra into court to backtrack again. Judge Kazen

concluded that he would give no credibility to the self-serving,

jail-house statement that 2,000 pounds of marijuana was already in

the shed when th e trailer arrived. 1 1 Judge Kazen decided insteadthen got a lawyer, then fired that lawyer

and got another lawyer, then all of a

sudden was saying that all that

confession was coerced. Now, he’s back

here in front of me, the ot her day,

firing that lawyer and saying that lawyer

betrayed him i n some way, and -- and I

don’t even know what he wants to do now.

If he wants me to get him a new lawyer,

and I haven’t sentenced him yet, so I

just don’t think it’s appropriate for me

to bring him in here and have him start

trying to backtrack again. Because at

this stage, I have -- you know, based on

the record that I have with Mr. Becerra,

I just

-- you know, I give no credibility

at this stage to what he’s saying anyway.

And so even aside from that, I --

Counsel: Even if he said that?

Court: Right. But I’ll stipulate with

you if that will help, if

that’s what he’s telling you

folks now.

12 The district court also exp lained that it did not

consider the confidential informant’s testimony dispositive of the

amount carried b ecause the conspirators may have simply told the

informant that he would be carrying 1,100 pounds in order to make

him “feel less afraid to get involved,” or perhaps because they

wanted to pay him less for his role in the conspiracy.

-20- to rely on Becerra’s uncoerced statements to the probation officer,

Becerra’s failure to object to the quantity of marijuana as set

forth in his own PS R, and the unlikely scenario presented by the

defendants’ new theory ( i.e. , that the elaborate conspiracy added

only 1,100 poun ds of marijuana to the stash of 2,000 pounds of

marijuana already sitting in the shed whe n Becerra unloaded the

trailer). 12 Judge Kazen explained his reasons as follows:-21-

Well, let me repeat the prior comments, but add one

thing. Because, Mr. Perez [counsel for Beco], you’ve

really raised two different theories, and so let me just

comment. First of all, is the theory that maybe a good

c hunk of this marijuana, more than half of it, was

already at the ranch.

I would say to you the following: As I understand this

r ecord, there is absolutely no dispute at all t hat --

when the agents went in to this ranch, shortly after the

truck went in and when t he bust was made, that they --

that there was 3,160 pounds there.

So theory number one is that two-thirds of that was

already at this ranch , that all of this operation from

the South, which involved these people here in Zapata

coordinating with people from San Diego, meeting people

in Mathis, arranging people to meet in San Antonio,

following this whole convoy situation, all of which is in

the record, was all done just to bring a little extra

amount, or maybe 7 or 800 p ounds, to a load that was

already there over [2,000] pounds.

Number one, I don’t think that makes any sense. Number

two, the -- Becerra, although granted, he vacillates in

and out of what his position is. But he has said to the

probation office that it was a full truck loaded to the

[g]ills, and that there was nothing else there when he

off loaded it. Number three, the truck, as I said, was

on constant surveillance.

For obvious reasons, Judge Kazen refused to give any

credibility to the alleged change of heart by Becerra )) made while

Becerra and the other defendants were in custody awaiting

sentencing, where the only remaining issu e was the amount of

marijuana for which the defendants would be sentenced.

Particularly because Becerra was the only defendant who could

testify to the offloadi ng and he had already indicated in

statements to the FBI and the probation officer that the load was

over 3,000 pounds, Judge Kazen refused to indulge Beco’s invitation

to recall Becerra.

In Salinas, Jr.’s sentencing hearing on April 1, 19 94, his13 The probation officer had testified that Becerra told him

that there were two distinct portions of marijuana in the trailer:

“[O]ne of the portions was stacked very neatly and covered while

the rest of the tanker trailer bundles were -- seemed to be

disorganized and simply just thrown in there.”

-22- counsel conceded that the November 5th delivery involved the

transportation of 3,000 pounds of marijuana. Again, he did not

claim that there was already 2,000 pounds of marijuana in the shed;

instead, he argued that the 3,000 pound load of marijuana was

packaged in two distinct portions in the trailer and that Salinas,

Jr. only intended to participate in a smaller conspiracy of 1,100

pounds of marijuana. 13 Judge Kazen questioned Salinas, Jr.’s

counsel about his theory that Salinas, Jr. should not be sentenced

on the entire amount of marijuana as follows:

Court: Okay. And Becerra, however, so we

can complete the story, also said

that when he arrived at the Kirchner

ranch to off-load the marijuana from

this truck, he lo aded it in a shed

at the ranch, correct?

Probation Officer: That’s right.

Court: Th en there was nothing else in the

shed. And when it was off-loaded,

it’s undisputed by everybody that

there was 3,000 pounds in that

trailer, correct?

Counsel: I -- I understand.

Court: What

-- with that and I’m not

-- I’m

not criticizing you. I know there’s

different ones that raise this

point, but they all have different

theories about it. What’s your

theory?-23-

Counsel: My theory is, it is evident from the

tapes that were

-- in the

Government’s possession and

introduced at trial, that my client

was talking to

-- between 700 to

1,100 pounds, period. In fact, as

part of that same tape introduced at

trial, after that had

-- tape made

after the bust itself, my client

states

-- or Aureliano, Jr. states

that had he been involved in 3,000

pounds he would have done it this

other way, you see, indicating a

complete lack of knowledge, and I

understand that a reasonable

foreseeability on that is

-- is a

standard.

However, it was evident that he

was still of the impression that you

were dealing only in this lesser

amount. And I know it’s hard to get

around that fact that there was

3,000 pounds, period, you know.

There’s -- but I think that perhaps

a legal argument could be made that

his intention was to get involved

between 700 to 1,10 0. That he was

involved I think that’s a matter of

-- of record, not involved in the

loading itself; therefore, was

unaware. Now, we have two separate

packaging

-- or not packaging, but

loading structures. I don’t know if

it was

-- the packaging was the same

or not. There was no information

with regards to that, but two

separate, different loadings. And I

think that weighs strongly on -- on

Aureliano , Jr.’s involvement as to

the amounts, Your Honor.

Once again, Salinas, Jr.’s counsel did not argue that there was any

marijuana in the shed, and conceded that “it’s hard to get around

that fact that there was 3,000 pounds, period.” Judge Kazen

rejected Salinas, Jr.’s legal claim that he should not be held-24-

legally responsible for the entire amount of marijuana that he

assisted in tran sporting to the Kirchner Ranch. S ee U.S.S.G.

§ 1B1.3(a)(1)(A) (providing that defendant is accountable for “all

acts and omissions committed, aided, abetted, co u nseled, [or]

commanded” without respect to “reasonable foreseeability”); see

also United States v. Carreon

, 11 F.3d 1225, 1237 & n.60 (5th Cir.

1994) (noting that “reasonable foreseeability” limitation does not

apply to conduct for which the defendant is an aider and abettor).

Altho ugh Salinas, Jr. ordered a transcript of his sentencing

hearing, the record indicates that it was never produced for the

prior panel.

Judge Kazen’s decision to rely on the conclusions in the PSR

to sentence the defendants based on 3,160 pounds of marijuana was

proven correct at Becerra’s sentencing on April 6, 1994. At that

hearing, Becerra admitted in open court that the shed was empty

when he began to unload the marijuana from the trailer and that he

told this to Officer Chavez during his PSR investigations. Becerra

ex plained his recent vacillation to Judge Kazen by stating that

while he was in jail, the other defendants told him to say that he

unloaded only 1,000 pounds of marijuana and that there was already

marijuana in the shed when he began to unload the trailer. Becerra

also informed Judge Kazen that someone in the jail had threatened

the safety of his family if he did not change his story about the

amount of marijuana tha t he transported. The following exchange14 Based on the quantity of marijuana, the district court

imposed the following sentences:

-25- occurred between Judge Kazen and Becerra:

Court:

-- there’s no quest ion that there

was 3,000 pounds in that tanker.

Mr. Chave z [the probation officer]

says that you admitted that you

unloaded --

Becerra: Yeah. I admitted I unload, but I --

Court: And that that ’s -- that it was all

there and that you’re

-- the

codefendants are conjurin g up this

theory that it was -- half of it or

more was already at the ranch, and

you just added a little bit.

Becerra: They

-- they had

-- they’ve been

telling me that over there in jail,

to say this, to say that. I’m just

going to say what I seen there.

Like I told Mr. Chavez [the

probation officer], there was

nothing in the -- in the shed. The

only thing that was there was hay

and some dog food or horses and --

but I didn’t know what was the

amount on there or anything in the

truck.

Court: And -- and for that matter, I don’t

really have any reason to quarrel

with that. I mean -- you know, I

don’t know what you knew or didn’t

know, but i t doesn’t necessarily

surprise me that they didn’t spell

out to you and say, “Mr. Becerra,

now, we want you to help us and

there’s exactly 3,000 pounds in

there.” The sense I get is that

maybe nobody really knew.

The district court ultimately sentenced all of the defendants

based on 3,160 pounds of mariju ana. 1 4 All of the defendants1. Salinas, Sr.

- 240 months in the custody of the Bureau

o f Prisons, a fine of $3,000 and a supervised r elease

term of ten years.

2. Leal

- 240 months in the custody of the Bu reau of

Prisons, a $2,000 fine and a supervised release term of

ten years.

3. Salinas, Jr.

- 168 months in the custody of the Bureau

o f Prisons, a fine of $2,500 and a supervised r elease

term of five years.

4. Becerra - 135 months in the custody of the Bureau of

Prisons, a fine of $1,000 and a supervised release term

of five years.

5. Ramirez - 125 months in the custody of the Bureau of

Prisons, a fine of $2,500 and a supervised release term

of five years.

6. Beco

- 125 months in the custody of the Bureau of

Prisons, a fine of $2,500 and a supervised release term

of five years.

-26- appealed the ir convictions to our court, and all but Leal

challenged the district court’s use of 3, 160 pounds of marijuana

for sentencing. Significantly, neither the transcript of Becerra’s

sentencing hearing nor the content of his FBI statements was put

before our prior panel.

II

A

In our prior opinion, although we affirmed the convictions of

all the defendants, we reversed and vacated the sentences because

we found that “[t]he district court’s findings as to the amount of

marijuana to attribute [were] not supported by a preponderance of

the evidence.” The panel rested its conclusion on the defendants’-27-

assertions (in their briefs on appeal) that there was no evidence

that the trailer contained all 3,160 pounds discovered at the shed.

As demonstrated above, however, there was substantial evidence that

the trailer contained all 3,160 pounds discovered at the shed; the

problem for the prior panel was that little of it was in the

appellate record. Although Becerra appealed his sentence and

conviction, he failed to order a transcript of his sent encing

hearing. In doing so, he violated our well established rule that

a defendant’s failure to order those parts of the record containing

errors prevents the court from reviewing the error. S ee F ED . R.

A PP

. P. 10(b)(2) (“If the appellant intends to urge on appeal that

a finding or conclusion is unsupported by the evidence or is

contrary to the evidence, the appellant shall include in the record

a transcript of all evidence relevant to such finding or

conclusion.”); see also United States v. Narvaez

, 38 F.3d 162, 167

(5th Cir. 1994) (“As the district court relied upon such evidence

and as Narvaez f ailed to order that portion of the record, this

court is precluded fr om reviewing his allegation.”). The panel,

however, did not enforce the rule and proceeded to review Becerra’s

c laim of error. In addition to Becerra’s failure to order the

sentencing hearing transcript, neither the government nor any of

the defendants told the prior panel about the events that took

place at B ecerra’s sentencing hearing ( i .e.

, that Becerra told

Judge Ka zen that the shed was empty when he began unloading the-28-

trailer and that the other defendants were telling him to lie about

it). Furthermore, the government failed to inform the panel that

in his confessions to the FBI, Becerra admitted that he was told

that the delivery would be 3,000 pounds.

Consequently, because the parties failed to provide the panel

with critical information, the panel opinion foc used on the

testimony at trial (rather than all of the events relevant to the

district court’s sentencing decision): “The testimony at trial as

to the amount of marijuana to be transported differed from the

amount actually seized. None of the testimony indicated over 3,000

pounds of the substance.” Leal

, 74 F.3d at 607. These conclusions

were correct to the extent that they were based on the portion of

the record which the panel had the opportunity to review: the

government did not put forward any testimony at trial regarding the

3,160 pounds (which, as we noted above, it did not have to do

because the weight is not an element of the offense, see supra at

9 n.6). The panel opinion continued, however, explaining what it

believed to be the district court’s reasons for sentencing the

defendants on the entire amount found in the shed:

The [district] court found it incredulous that the

defendants would engage in such a complicated scheme to

contribute only a third of the amount to an existing

stash. Furthermore, the court surmised that the

defendants may have understated the actual amount to the

CI for fear he would demand greater compensation given

the true value of his services to the operation.

Id. at 607-08.-29-

Because of the inadequate record before it, the p rior panel

concluded that the district court’s “supp ositions” were based on

“intuition alone.” I d. at 608 n.1. The prior panel found that

“[t]he disparity in the evidence between the defendants activities

and the amount of drugs seized [was] not adequately explained. The

reasons the court gave [were] mere rationalizations, not specific

enough to assure us sufficiently that the defendants are reasonably

responsible for all the marijuana found at the ranch.” I d. at 608.

Thus, the opinion “vacate[d] the sentence and rema nd[ed] to the

district court for resentencing, attributing to the defendants the

amount of marijuana related in the testimony at trial.”

Significantly, the opinion also specified that the te stimony at

tri al “ranged from 500 pounds to a little over 1,000 pounds. In

particular, the CI said that he was told the defendants agreed to

deliver 1,100 pounds of the substance by tanker/trailer.” Id. at

607.

B

The government filed a petition for panel rehearing in Leal

,

arguing that the district court did not commit clear error when it

attributed 3,160 pounds to the defendants. Instead of setting

forth the significant facts that had been omitted from both its

brief on appeal and the appellate record (as it has done in this

appeal), the government again failed to bring any of the critical

facts to the attention of the panel. In contrast to its position-30-

here ( i.e.

, that the evidence clearly demonstrates t hat the

defendants transported 3,160 pounds), the government argued in its

petition for rehearing simply that “there were two permissible

constructions of the evidence”:

There are two plausible views of the evidence as it

relates to the amount of marijuana actually transported

by the conspirators in the truck. First, the shed at the

ranch contained no more than 1,500 pounds of marijuana

when the truck entered the ranch on November 5. . . .

While this scenario is plausible, it is most unlikely.

There is no evidence in the record that marijuana was in

the shed when the truck arrived, and Becerra did not tell

the agents this when he confessed. . . .

Second, the shed was empty when the truck arrived, and

the amount of marijuana unloaded by Becerra and Leal was

in excess of 3,100 pounds.

. . . It is also possible

that the conspirators did not know exactly how much

marijuana they were going to transport until the last

minute.

In any event, either scenario is possible. The

district court chose the second possibility, and cannot

have been clearly erroneous in doing so.

The government’s argument demonstrates that it wholly failed

to bring the relevant facts to the attention of the panel. Indeed,

judging from the contents of its petition for panel rehearing, it

appears that the government was completely unaware of them. Not

surp risingly, the prior panel rejected the government’s petition

for panel rehearing. Thereafter, the court issued six separate

(but identical) mandates )) a separate mandate for each defendant,

including Leal )) stating that “the judgment of the District Court in

this cause is affirmed, and the cause is remanded to the District

Court for further proceedings in accordance with the opinion of

this Court.” The government did not seek a stay of the mandate-31-

with respect to the remand of Leal’s or any defendant’s sentence.

III

Because this case reaches us on appeal for the second time, we

must consider the implications of our prior opinion in Leal and the

well-settled “law of the case” doctrine. “Under the ‘law of the

case’ doctrine, an issue of law or fact decided on appeal may not

be reexamined either by the district cour t on remand or by the

appellate court on a subsequent appeal.” Illinois Cent. Gulf R.R.

v. International Paper Co.

, 889 F.2d 536, 539 (5th Cir. 1989).

This self-impos ed doctrine “serves the practical goals of

encouraging finality of litigation and discouraging ‘panel

shopping.’” Id. at 539; see also Lehrman v. Gulf Oil Corp.

, 50 0

F.2d 659, 662 ( 5th Cir. 1974). “It is predicated on the premise

that ‘there would be no end to a suit if every obstinate litigant

could, by repeated appeals, compel a court to listen to criticisms

on their opinions or speculate of chances from changes in its

member s.’” W hite v. Murtha

, 377 F.2d 428, 431 (5th Cir. 1967)

(quoting Roberts v. Cooper , 61 U.S. (20 How.) 467, 481, 15 L. Ed.

969 (1857)). The law of the case doctrine, however, is not

inviolate. We have explained that “a prior decision of this court

will be followed without re-examination

. . . unless (i) the

evidence on a subsequ ent trial was substantially different, (ii)

controlling authority has since made a contrary decision of the law

applicable to such issues, or (iii) the decision was clearly-32-

erroneous and would work a manifest injustice.” North Mississippi

Communications, Inc. v. Jones , 951 F.2d 652, 656 (5th Cir. 1992);

see also City Pub. Serv. Bd. v. General Elec. Co.

, 935 F.2d 78, 82

(5th Cir. 1991); Lyons v. Fisher

, 888 F.2d 1071, 1074 (5th Cir.

1989); Daly v. Sprague , 742 F.2d 896, 901 (5th Cir. 1984).

A corollary of the law of case doctrine, known as the mandate

rule, provides that a lower court on remand must “implement both

the letter and the spirit of the [appellate court’s] mandate,” and

may not disregard the “explicit directives” of that court. S ee

Johnson v. Uncle Ben’s, Inc.

, 965 F.2d 1363, 1370 (5th Cir. 1992).

“The mandate rule simply embodies the proposition that ‘a district

court is not free to deviate from the appellate court’s mandate.’”

Barber v. International Bhd. of Boilermakers , 841 F.2d 1067, 1070

(11th Cir. 1988) (quoting Wheeler v. City of Pleasant Grove

, 746

F.2d 1437, 1440 n.2 (11th Cir. 1984)); s ee also Harris v. Sentry

Title Co.

, 806 F.2d 1278, 1279 (5th Cir. 1987) (“It cannot be

disputed that ‘when the further p roceedings [in the trial court]

are specified in the mandate [of the Court of Appeals], the

district court is limited to holding such as are di rected.’”)

(alterations in original) (quot ing 1B M O ORE ’ S F EDERAL P RACTICE ¶

0.404(10), at 172 (1984)); Newball v. Offshore Logistics Int’l

, 803

F.2d 821, 826 (5th Cir. 1986) (holding that “a mandate controls on

all matters within its scope”).

Consequently, unless one of the exceptions to the law of the15 The government also argues that the district court was

not bound by our mandate to resentence the defendants based on “the

testimony at trial” (and that it could, instead, consider

additional evidence which the government incidentally failed to put

before the prior panel). We reject the government’s attempt to

circumvent the narr ow exceptions to the mandate rule and the

explicit language of our mandate. S ee Cole Energy Dev. Co. v.

Ingersoll-Rand Co.

, 8 F.3d 607, 609 (7th Cir. 1993) (“[E]xplicit

directives by [an ap pellate] court to [a] lower court concerning

proceedings on remand are not dicta.”); Litman v. Mass achusetts

Mut. Life Ins. Co.

, 825 F.2d 1506, 1511 (11th Cir. 1987) (en banc)

(“When an appellate court issues a specific mandate it is not

subject to interpretation; the district court has an obligation to

carry out the order. A different result would encourage and invite

district courts to engage i n ad hoc analysis of the propriety of

appellate court rulings.”).

The government does not argue that the terms of our mandate

were vague or unclear. The argument that the prior panel should

have allowed the district court to resentence the defendants based

-33- case doctrine applies, the district court was bound to follow our

mandate and to resentence the defendants based on the testimony at

trial. See, e.g., Johnson , 965 F.2d at 1370 (“The ‘mandate rule’

is a specific application of the ‘law of the case’ doctrine.”)

(internal quotation marks omitted); see also L i tman v.

Massachusetts Mut. Life Ins. Co.

, 825 F.2d 1506, 1516 (11th Cir.

1987) (en banc) (“If circumstances after remand fall into one of

the three exceptions to the mandate rule, the district court has

greater discretion to act. If the circumstances after remand do

not fall into one of the exceptions . . . then the district court

is constrained to follow the mandate issued by the appellate

court.”). The government urges that both the first and third

exceptions to the law of the case doctrine apply to the case at

hand. 15 We address each argument in turn.on a ny evidence that it found relevant ) ) whatever strength it may

have, cf. United States v. Kinder

, 980 F.2d 961, 963 ( 5th Cir.

1992) (“‘[I]n the interest of truth and fair sentencing a court

should be able on a sentence remand to take new matter into account

on behalf of either the government or the defendant.’”) )) s hould

have been presented to the prior panel in the government’s petition

for panel rehearing or a motion to stay the mandate. Thus, unless

an exception to the law of the case doctrine applies, the district

court was bound to resentence the defendants based on “the

testimony at trial.”

16 In an attempt to characterize Becerra’s FBI confessions

as “new” evidence, the government asserts in its brief that “[t]he

district court did not learn of the statements Becerra made to the

FBI until resentencing in 1996.” This assertion is both wrong and

irreleva nt. First, before trial, Judge Kazen held an extensive

hearing on Becerra’s motion to suppress the very statements that

the gover nment argues he did not learn about until resentencing.

See supra at 7-8. Furthermore, at trial, defense counsel

explicitly requested that Judge Kazen read Becerra’s FBI statements

for himsel f. See supra at 12 n.7. Second, even assuming that

Judge Kazen did not know about the contents of the FBI statements,

the government’s failure to present this evidence to the district

court does not justify or explain its similar failure to put this

evidence before the prior panel )) particularly in light of the fact

that Becerra’s motion to suppress his FBI statements was one of the

primary issues in the first appeal. See Lyons , 888 F.2d at 1075;

-34- A

At t he 1996 resentencing, the district court rejected the

government’s belate d attempt to introduce Becerra’s January 18th

statement bec ause our mandate ordered the district court to

resentence the defendants based on “the testimony at trial.” The

government argues that the district court erred in rejecting the

introduction of additional evidence because the evidence on remand

was substantially different. We reject the government’s attempt to

expand this law of the case exception to correct its own oversight

in failing to present the critical evidence to the prior panel. 16Barber , 841 F.2d at 1072-73.

-35-

The government fails to provide any reason why it did not, or

could not, present Becerra’s FBI statements to the prior panel in

either the first appeal or the motion for reconsideration. S ee

Lyons

, 888 F.2d at 1075 (“The truth is [] that Fisher flatly failed

in the prior proceeding, for reasons best known to him, to adduce

evidence of any consideration, despite his having both the reason

and opportunity to do so.”); Litman

, 825 F.2d at 1516 (“Mass

Mutual’s failure to seek modification of our decision had the

effect of binding the district court to our instructions as set

forth in the clear mandate.”). Moreover, our prior opinion did not

leave the issue open for decision nor authorize the district court

to consider additional evidence. “We have held that the

‘substantially different’ evidence exception to the law-of-the-case

doctrine does not apply where a prior appeal has not left the issue

open for decision.” L yons

, 888 F.2d at 1075; see also Barber

, 841

F.2d at 1072 n.5 (“The law of the case exceptions apply only when

substantially different evidence comes ou t in the course of a

subsequent trial authorized by the mandate.”); Goodpasture, Inc. v.

M/V Pollux

, 688 F.2d 1003, 1006 n.5 (5th Cir. 1982) (“[T]he

exception to law of the case where ‘evidence on a subsequent trial

[is] substantially different’ is inapplicab le where by the prior

appeal the issue is not left open for decision.’”) (quoting

National Airlines, Inc. v. International Ass’n of Machinists , 430-36-

F.2d 957, 960 (5th Cir. 1970)).

The prior panel specifically instructed the district court to

resentence the defendants based on “the testimony at trial.” C f.

Barber

, 841 F.2d at 1072 n.5 (rejectin g application of the

“substantially different evidence” exception because “[t]he fact

remains [] that there should have been no opportunity for

substantially different evidence to appear, as Sharit’s referrals

were not to b e considered on remand”). Thus, similar to our

conclusion in Lyons

, “the district court properly denied [the

government] the right on remand to offer evidence that [it] had had

every opportunity and incentive to produce at the earlier

proceeding.” L

yons

, 888 F.2d at 1 075; see also Baumer v. United

States

, 685 F.2d 1318, 1321 (11th Cir. 1982) (refusing to apply

“substantially different evidence” exception because “[t]here is

nothing in the record to indicate that the evidence produced at the

hearing after reman d was unavailable to the taxpayers during the

first trial”).

B

The government also argue s that the district court was not

bound by the law of the case because our prior decision is “clearly

erroneous” and th e error works a “manifest injustice.” Whether

this exception applies is a close question. As demonstrated, the

prior opinion is the result of critical facts being omitted from

the appellate record by both the government and the defendants,17 Indeed, the government argued in the first appe al that

the panel should not consider Becerra’s and Salinas Jr.’s claims of

sentencing error because they failed to provi de the relevant

portions of the record. S ee Leal

, 74 F.3d at 607. The

government’s argument is backed by a forceful array of precedent.

See

, e.g.

, United States v. Narvaez

, 38 F.3d 162, 167 (5th Cir.

1994) (holding that a defendant’s failure to order those parts of

the record that he contends contain error will prevent us from

reviewing that assignment of error); United States v. Hinojosa

, 958

F.2d 624, 632 (5th Cir. 1992) (same); U nited State s v.

Juarez-Fierro

, 935 F.2d 672, 675 n.1 (5th Cir. 1991) (same); United

States v. O' Brien , 898 F.2d 983, 985 (5th Cir. 1990) (same); s ee

also F ED

. R. A PP

. P. 10(b)(2) (requiring that appellant provides

transcript “of all evidence relevant to [the district court’s]

finding or conclusion”). Once again, the government failed to

raise this issue in its petition for panel rehearing, and more

importantly, could have solved the problem itself by simply

informing the prior panel of the substance of Becerra’s sentencing

hearing ( i.e. , that he confessed to Judge Kazen that the shed was

empty).

-37- and, to a lesser extent, the panel’s decision to proceed without

the transcripts of Becerra’s and Salinas, Jr.’s sentencing

hearings. 17

Our de cision in L yons v. Fisher presents a relatively

analogous situation and a useful guide to the ca se at hand. S ee

Lyons

, 888 F.2d at 1073. In Lyons

, our first opinion had reversed

the district court’s order granting summary judgment in favor of

the defendant on an alleged land transaction. We concluded (on the

first appeal) that the particular land transfer in question was an

“absolute n ullity” because there was a lack of consideration for

the transfer and remanded for “further proceedings consistent with

this opinion.” I d. On remand, the defendant filed an affidavit

with the district court asserting that he had been paid $450 as-38-

consideration for the land transfer, and thus, he argued, our panel

erred in concluding that the transfer was void for lack of

consideration. The district court, however (similar to the

district court here), refus ed to consider this “new” evidence,

holding that the law of the case doctrine precluded it from further

considering the question of the validity of the consideration. On

the second appeal, the defendant argued that the clearly erroneous

and manifest injustice e xception applied. We disagreed and

concluded that the defendant could not demonstr ate “manifest

injustice” because he was the one at fault for failing to put forth

the relevant evidence in the first appeal. We explained that

We might be persuaded that manifest injus tice had

occurred as a result of the alleged error if Fisher had

presented such evidence in the prior proceeding and the

previous panel had disregarded the evidence because of a

misunderstanding of the law, or if consideration had

become an issue only after it reached the appellate level

and Fisher had had no opportunity in the prior proceeding

to adduce such evidence.

Id. at 1075. However, because “Fisher flatly failed in the prior

proceeding, for reasons best known to him” to adduce the purported

new evidence, “despite his having both the reason and the

opportunity to do so,” we rejected his claim of manifest injustice.

See id.

Similarly, in the case at hand, the government now presents to

this court )) for the first time )) Becerra’s confession to the FBI and

the substance of his sentencing hearing before Judge Kazen. While

both indeed support the district court’s first sentencing decision,-39-

the government “flatly failed” to adduce this evidence in the first

appeal. See id. ; see also Barber , 841 F.2d at 1072 n.5 (refusing

to allow plaintiffs to put forth “new” evidence that had not been

offered at the first trial because “it is well settled that

plaintiffs in all cases are to be given their day in court, nothing

less but nothing more. Barber was given such an opportunity, as

the case was fully tried the first time, and the ‘new’ records

. .

. were available then.”). We recognize that Becerra shoulders

considerable blame for failin g to order the transcript of his

sentencing hearing and that our prior decision grants the

defendants a reprieve from their original sentence. We wish to

emphasize that this Court does not countenance Becerra’s failure to

provide the relevant transcripts of his sentencing hearing and that

this case should serve as a significant reminder of the rationale

for the waiver rule. S ee F ED . R. A PP . P. 10(b)(2); see also supra

at 32 n.17.

Nonetheless, the government cites no case where our court (or

any court, for that matter) has found that a prior opinion works a

manifest injustice where the party claiming injustice had all the

means and incentive to provide the relevant information in the

first appeal. Cf. Lyons , 888 F.2d at 1075 (refusing to find

exception to law of the case doctrine because appellant had “every

opportunity and incentive to produce [the relevant evidence] at the

earlier proceeding”). Furthermore, the government makes no-40-

argument why this “extraordinary” exception to the law of the case

doctrine should apply to the government’s failure to provide

relevant evidence in a criminal case. “As this Court has noted in

previous cases, ‘In this circuit,

. . . the law-of-the-case

doctrine is supplanted by our firm rule that one panel cannot

disregard the precedent set by a prior panel even though it

perceives error in the precedent.” H arris

, 806 F.2d at 1282

(alterations in original) (quoting United States v. 162.20 Acres of

Land

, 733 F.2d 377, 379 (5th Cir. 1984)). Even if we may have

reached a different result than our prior panel on the incomplete

record that was before them, our conclusion does not rise to the

extraordinary level required to find a manifest injustice. S e e

City Public Serv. Bd.

, 935 F.2d at 82 (“Only in extraordinary

circumstances may this court sustain a departure from the ‘law of

the case’ doctrine on the ground that a prior decision was clearly

erroneous. Mere doubts or disagreement about the wisdom of a prior

decis ion of this or a lower court will not suffice for this

exception.”); Parts & Elec. Motors, Inc. v. Sterling Elec., Inc.

,

866 F.2d 228, 233 (7th Cir. 1988) (“To be clearly erroneous, a

decision must strike us as more than just maybe or probably wrong;

it must, as one member of this court recently stated . . . strike

us as wrong with the force of a five-week-old, unrefrigerated dead

fish.”).

Ultimately, therefore, because blame also falls largely at the-41-

feet of the government for failing to point out to the prior panel

Becerra’s confessions to the FBI and the probation officer, or his

statements to Judge Kazen at the April 6th sentencing hearing, we

decline to find that our prior opinion results in a manifest

injustice. See Lyons , 888 F.2d at 1075-76 (rejecting application

of manifest injustice exception because “[i]t was only after this

court rendered its decision, and it became appare nt that

consideration was indeed the win-lose issue of this case” did the

appellant attempt to introduce the relevant evidence); Barber

, 841

F.2d at 1072 n.5 (refusing to find exception to the law of the case

doctrine when failure to bring relevant evidence was the

appellant’s own fault). Our conclusion in L yons is particularly

apt here: “[G]iven [the appellant’s] opportunity and his puzzling

failu re to adduce such evidence earlier, we hold that [the

appellant] has not suffered ‘manifest injustice’ simply because the

law-of-the-case doctrine may now preclude his tardy introduction of

that evidence.” Lyons , 888 F.2d at 1075.

Consequently, because none of the exceptions to the law of the

case doctrine apply, the district court properly followed our prior

opinion in resentencing the defendants.

IV

The government also contends that the district court lacked

jurisdiction to resentence Leal, claiming that “Leal’s sentence was

not vacated by this court.” We disagree, and note that the18 In its brief, the government states that this court

“vacated the sentences of all defendants, including Leal

, and

remanded for resentencing.” (emphasis added). The government does

not attempt to explain its later contrary assertion.

19 As noted above, see supra at 26, separate judgments

issued as to each defendant, and the particular judgment captioned

“United States vers us Victor Leal,” states that “the cause is

remanded to the district court for further proceedings in

-42- government itself concedes the very point in its brief. 18

The existence of jurisdiction is a question of law that we

review de novo

. S ee U nited States v. Teran , 98 F.3d 831, 833-34

(5th Cir. 1996). As a general matter, a “district court regain[s]

jurisdiction over [a] case upon our issuance of the mandate.”

Arenson v. Southern Univ. Law Ctr

. , 963 F.2d 88, 90 (5th Cir.

1992); see also United States v. Dozier

, 707 F.2d 862, 864 n.2 (5th

Cir. 1983). Unless recalled, that mandate “controls on all matters

within its scope.” Newball , 803 F.2d at 826. No party having

moved to stay or recall this mandate, our inquiry into the basis

for the district court’s jurisdiction to resentence Leal is at an

end. See Leroy v. City of Houston , 906 F.2d 1068, 1074 (5th Cir.

1990) (holding that an appellate mandate retains its force unless

recalled, because even if some portions of the mandate appear to be

“the result of inadvertence on the part of the appellate court,”

the “appropriate procedure” in that situation is to “move this

Court to recall its mandate”). In the face of the government’s

explicit concession, see supra at 36 n.18, as well as the fact that

a specific mandate issued for Leal, 19 we reject the government’saccordance with the opinion of this Court.” The opinion, in turn,

states that “[w]e vacate the sentence and remand to the district

court for resentencing, attributing to the defendants the amount of

marijuana related in the testimony at trial.” L eal

, 74 F.3d at 608

(emphasis added). Even if our prior opinion should not have given

Leal the benefit of an argument he did not raise, but cf. F ED

. R.

C RIM

. P. 52(b) (“Plain errors or defects affecting subs tantial

rights may be noticed although they were not brought to the

attention of the court.”), the government should have raised this

argument with a motion to stay the mandate. S ee 5TH CIR. R. 41.2

(providing that a mandate may be recalled to “prevent injustice”);

see also Leroy v. City of Houston

, 906 F.2d 1068, 1075 (5th Cir.

1990) (refusing to treat an appeal following remand as a motion to

recall the prior mandate); Barber , 841 F.2d at 1071 n.2 (refusing

to consider additional argument on second appeal when “counsel

requested neither rehearing by the panel nor rehearing by the court

en banc”); Litman

, 825 F.2d at 1513 (explaining that appellee’s

fai lure to seek any modification of appellate court’s prior

decision limited the issues to those specified on remand).

-43- claim tha t the district court lacked jurisdiction to resentence

Leal following the issuance of our mandate in his case. S ee

Newball , 803 F.2d at 826 (“When an appellate mandate is issued, a

district court reacquires jurisdiction.”).

V

We turn now to Becerra’s contentions on appeal, specifically

his assertion that the district court erred in denying him a fourlevel reduction for minimal particip ation and a three-level

reduction for acceptance of responsibility. The government asserts

that Becerra failed to raise these sentencing issues on the first

appeal, and that the law of the case therefore bars our

consideration of these abandoned claims. We agree. “[A] legal

decision made at one stage of a civil or criminal case,

unchallenged in a subsequent appeal despite the existence of ample-44-

opportunity to do so, becomes the law of the case for future stages

of the same litigation, and the aggrieved party is deemed to have

forfeited any right to challenge that particular decision at a

subsequent date.” U nited States v. Bell

, 988 F.2d 247, 250 (1st

Cir. 1993). Because Becerra did not challenge the district court’s

minimal participant and acceptance of responsibility decisions in

his first appeal, we need not consider those belated challenges

here. Even if we were to reach the merits of Becerra’s

contentions, they are without merit.

A

Whether Becerra was a “ minimal participant,” entitled to a

four-level reduction pursuant to U.S.S.G. § 3B1.2(a), or a “minor

participant,” entitled to a t wo-level reduction pursuant to

U.S.S.G. § 3B1.2(b), is a factual determination that we review only

for clear error. S ee United States v. Pofahl

, 990 F.2d 1456, 1485

(5th Cir. 1993). Minimal participants are those who demonstrate a

“lack of knowledge or understanding of the scope and structure of

the enterprise.” See United States v. Mitchell , 31 F.3d 271, 278

(5th Cir. 1994) (citing U.S.S.G. § 3B1.2, cmt. (n.1)). Minor

participants are those “less culpable than most other participants,

but whos e role could not be described as minimal.” I d. (citing

U.S.S.G. § 3B1.2, cmt. (n.3)).

The testimony at trial established that Becerra knew that he

was involved with several other people in an attempt to transport-45-

a load of marijuana from Laredo, Texas to Bulverde, Texas, and that

his role in the operation was to assist in the unloading of the

marijuana once it r eached its final destination. Such knowledge

belies any claim to minimal-participant status. S ee Rosier v.

United States Parole Comm’n

, 109 F.3d 212, 214 (5th Cir. 1997)

(holding that the defendant c ould not “reasonably assert that he

lacked knowledge or understanding of the enterprise to the degree

necessary to support a reduction as a minimal par ticipant,” when

he admitted to driving the vehicle on other occasions in exchange

for “large sums of money,” and also admitted that he “suspected

that drugs were in the van”). Accordingly, we hold that the

district court did not err in determining that Becerra qualifies as

a minor rather than a minimal participant.

B

Whether Becerra “accepted responsibility” in a manner

sufficient to entitle him to a three-level reduction under U.S.S.G.

§ 3E1.1, i s a determination requiring some judgment as to

credibility, and therefore will “not be disturbed unless it is

without foundation.” U nited States v. Maldonado

, 42 F.3d 906, 913

(5th Cir. 1995). The guidelines indicate that an acceptance-ofresponsibility re duction is generally not appropriate when a

defendant “puts the government to its burden of proof at trial by

denying the essential factual elements of guilt, is convicted, and

only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1,-46-

cmt. (n. 2); see also United States v. Branch

, 91 F.3d 699, 742

(5th Cir. 1996) (noting that “[w]hile conviction by trial does not

‘automatically preclude’ the availability of this [reduction], the

Guidelines contemplate that those cases in which the defendant both

accepts responsibility within the meaning of this section and goes

to trial will be ‘rare’”) (citations omitted).

The d istrict court did not find Becerra to be one of those

“rare” defendants who goes to trial and yet may fairly be said to

have accepted responsibility. This determination, far from being

“without foundation,” ap pears well supported by the record. As

B ecerra’s counsel noted in his closing statement to the ju ry:

“Ruben Gil Becerra is here before you and he’s maintaining his

innocence

. . . [t]here’s n o evidence to show that he possessed

marijuana, no evidence whatsoever.” On direct appeal, Becerra

continued to challenge the sufficiency of the evidence presented by

the government. Whatever assistance Becerra may have provided to

the FBI post-arrest and pre-trial, Be cerra’s overall approach to

the cha rges against him does not demonstrate an acceptance of

responsibility. S ee id. (rejecting as “ludicrous” a defenda nt’s

suggestion that he was entitled to a three-level reduction for

acceptance of responsibility when he provided a post-arrest

statement, but contested his factual guilt at trial, and even

proclaimed at sentencing that “we still stand on our innocence”).

We therefore find no error in the district court’s denial of a-47-

three-level, acceptance-of-responsibility reduction.

VI

For the foregoing reasons, the judgment of the district court

is, in all respects, AFFIRMED.