IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-50400

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EMMANUEL EMIL BAILEY, also known as Emmanuel Bailey, also known as 

Jermaine Jamal Lyons, also known as Mobban, also known as Young Mobban,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:15-CR-148-1

Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Emmanuel Emil Bailey pleaded guilty to transportation of an individual 

in interstate commerce with the intent that such individual engage in 

prostitution or sexual activity in violation of 18 U.S.C. § 2421. The district 

court sentenced him above the advisory guidelines range to 84 months of 

imprisonment and three years of supervised release. On appeal, Bailey’s 

 

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

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

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 14, 2019

Lyle W. Cayce

Clerk

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No. 18-50400

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appellate counsel moved to withdraw and filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967). Counsel subsequently withdrew the Anders

motion and filed a brief on the merits challenging four of the standard 

conditions of supervised release. We vacated the conditions and remanded for 

resentencing. United States v. Bailey, 697 F. App’x 270, 271 (5th Cir. 2017) 

(per curiam) (unpublished). On remand, Bailey filed a motion to reconsider 

the district court’s upward departure.1 The district court denied the motion 

and reimposed its original sentence, absent the four challenged conditions of 

supervised release.

Bailey now argues that the district court erred in failing to consider his 

upward departure challenge at resentencing. He maintains that his “case 

qualifies for a unique exemption” to the mandate rule because he raised this 

argument in his pro se response to counsel’s Anders motion. Bailey concedes 

that his counsel did not raise such a challenge in his merits brief. 

We review the district court’s application of our remand order de novo. 

See United States v. Bazemore, 839 F.3d 379, 385 (5th Cir. 2016). “Under the 

mandate rule, ‘[a] district 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.”’” United States v. Teel, 691 F.3d 578, 583 (5th 

Cir. 2012) (alteration in original) (quoting United States v. McCrimmon, 443 

F.3d 454, 459 (5th Cir. 2006)). “‘Additionally, pursuant to the “waiver 

 

1 The parties incorrectly refer to Bailey’s sentence as an upward departure; it is 

instead an upward variance. See United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) 

(“This court recognizes three types of sentences: (1) ‘a sentence within a properly calculated 

Guidelines range’; (2) ‘a sentence that includes an upward or downward departure as allowed 

by the Guidelines’; and (3) ‘a non-Guideline sentence’ or a ‘variance’ that is outside of the 

relevant Guidelines range.” (quoting United States v. Smith, 440 F.3d 704, 706-07 (5th Cir. 

2006))). To the extent the parties refer to Bailey’s sentence as an upward departure, “those 

arguments are not applicable and are construed as referencing the upward variance, where

possible.” United States v. Ramirez Gasca, 476 F. App’x 16, 17 (5th Cir. 2012) (per curiam) 

(unpublished).

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approach” to the mandate rule,’ ‘[a]ll other issues not arising out of this court’s 

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

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

below.’” Id. (alteration in original) (first quoting McCrimmon, 443 F.3d at 459;

then quoting United States v. Pineiro, 470 F.3d 200, 205 (5th Cir. 2006) (per 

curiam)).

The district court “implement[ed] both the letter and spirit of [our] 

mandate” by limiting its review to the four challenged conditions of supervised 

release. Id. Because Bailey’s upward variance challenge was not raised in his 

original appeal, and could have been raised therein, the issue was waived and 

not properly before the district court at resentencing. See id. at 583-84; United 

States v. Griffith, 522 F.3d 607, 610-11 (5th Cir. 2008). In addition, contrary 

to Bailey’s argument, he did not have a right to hybrid representation on 

appeal. See United States v. Ogbonna, 184 F.3d 447, 449 n.1 (5th Cir. 1999)

(denying defendant’s motion to file a pro se brief when defendant’s counsel had 

already filed a competent brief on his behalf); 5TH CIR. R. 28.6. Therefore, the 

district court’s judgment on remand is AFFIRMED.

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