### 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 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED June 14, 2019 Lyle W. Cayce Clerk Case: 18-50400 Document: 00514997113 Page: 1 Date Filed: 06/14/2019No. 18

- 50400

2 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 file d 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 United States v. Bailey , 697 F. App’x 270, 271 (5th Cir. 2017) (per curiam) (unpublished).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, Bai ley 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 a t 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 counse l’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 t he 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, 58 3 (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 prope rly 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. S mith , 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, whe re possible. ” United States v. Ramirez Gasca , 476 F. App’x 16, 17 (5th Cir. 2012) (per curiam) (unpublished). Case: 18-50400 Document: 00514997113 Page: 2 Date Filed: 06/14/2019No. 18

- 50400

3 approach” to the mandate rule,’ ‘ [ a ] ll other issues not arising out of this court’s ruling and not raised before the a ppeals 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 2 00, 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, c ontrary 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) ; 5 TH C IR

. R. 28.6. Therefore, the district court’s judgment on remand is AFFIRMED. Case: 18-50400 Document: 00514997113 Page: 3 Date Filed: 06/14/2019