*District Judge of the Western District of Louisiana,

sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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NO. 97-20378

__________

UNITED STATES OF AMERICA,

Plaintiff-Appellee

VS.

REYNALDO MARMOLEJO

Defendant-Appellant

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Appeals from the United States District Court

for the Southern District of Texas

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April 21, 1998

Before JONES and SMITH, Circuit Judges, and SHAW,* District Judge.

JOHN M. SHAW, District Judge:

Reynaldo Marmolejo challenges his resentencing following

remand, arguing that the district court erred in refusing to permit

him to offer testimony on questions of acceptance of responsibility

and obstruction of justice. We affirm.

I.

Reynaldo Marmolejo was charged in a superseding indictment

with conspiracy to possess with intent to distribute cocaine and 
2

marijuana, conspiracy to launder monetary instruments, and

accepting bribes as a public official. A jury found Marmolejo

guilty of all three counts.

The presentence investigation report found that Marmolejo had

transported 200 kilograms of cocaine, setting a base offense level

of 38. The report recommended increasing the base level because

Marmolejo carried a gun during the transportation of drugs, abused

his position of public trust as an agent of the Immigration and

Naturalization Service, and obstructed justice by trying to

persuade a co-defendant and fellow INS agent to lie and feign

mental illness to suppress a prior confession.

Marmolejo objected to the enhancements based on obstruction of

justice and possession of a firearm. The defendant further argued

that he was entitled to a reduction in the base offense level

because he admitted his involvement in the crimes to the probation

officer and he was only a minor participant in the conspiracy.

At the defendant's original sentencing, the district judge

declined to enhance Marmolejo's sentence for possession of a

firearm because he found that the defendant did not display or

brandish the firearm, and reduced the defendant's sentence for

acceptance of responsibility and minor participation. The district

judge further found that Marmolejo obstructed justice and abused

his position of trust and enhanced his sentence based on those

provisions.

The defendant appealed his convictions on the basis that they

were not supported by sufficient evidence. The Government cross
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appealed the sentence arguing that the district court erred in

failing to enhance Marmolejo's sentence for possession of a firearm

and for reducing the defendant's sentence upon a finding of

acceptance of responsibility and being a minor participant.

In the first appeal, this court rejected the defendant's

contentions and found merit in the Government's appeal, vacating

Marmolejo's sentence and remanding it to the district court for

resentencing consistent with its opinion. United States v.

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

Specifically, this court held that Marmolejo had failed to

carry his burden of showing that it was clearly improbable that the

weapon he carried in connection with his duties as an INS agent was

not connected with the drug-trafficking crime. Because Marmolejo

had put the Government to its burden of proof by going to trial, by

denying the essential factual element of guilt, and because

Marmolejo's sentence had been enhanced for obstruction of justice,

the court held that the district court had erred in adjusting

Marmolejo's offense level downward for acceptance of

responsibility. Finally, this court held that the district court

erred in reducing Marmolejo's offense level as a minor participant

under USSG § 3B1.2(b).

At the resentencing hearing after remand, the defendant sought

to present evidence on the questions of acceptance of

responsibility and obstruction of justice. Marmolejo also stated

that he wanted to present evidence to demonstrate his minor role in
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the offense. He proffered his own testimony, in which he claimed

he had not encouraged his co-defendant to feign mental illness.

The district court refused to hear evidence on the question of

obstruction of justice because its original finding on that issue

had not been challenged by either party on appeal. Also, the

district court found the additional evidence offered on

the question of acceptance of responsibility would not

make a difference with the court because of statements

previously made by the defendant to the court during his

initial sentencing. The district judge stated that

there was enough evidence standing alone to find

acceptance of responsibility was not appropriate. 

II.

The sole issue on appeal before this court involves

the determination of the scope of this court's remand

order for resentencing.

Marmolejo argues that the district judge erred at

the resentencing hearing following remand when he

refused to hear new evidence presented on the issue of

acceptance of responsibility and obstruction of justice.

The defendant asserts that a resentencing hearing should

be de novo unless the court of appeals expressly and

specifically limits the scope of the remand. 

Marmolejo submits that because this court did not

specifically limit the scope of its remand order, the

resentencing following remand should be de novo,
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requiring the district court to hear all evidence

offered regarding the defendant's sentencing regardless

of whether those issues were challenged on appeal.

The issue involving the scope of a remand for

resentencing has caused a significant split in the

circuits. The appellant has cited the majority view

among the circuits that sentencing following remand

should be conducted de novo and is not limited only to

the reasons for the remand. United States v. Smith, 116

F.3d 857 (10th Cir. 1997); United States v. Jennings, 83

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

69 F.3d 679 (2d Cir. 1995); United States v. Ponce, 51

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

968 F.2d 703 (8th Cir. 1992).

The general proposition regarding the scope of this

court's remand order has never been addressed entirely

by this court. This court has held that once an issue

is remanded for resentencing, all new matter relevant to

that issue appealed, reversed, and remanded, may be

taken into consideration by the resentencing court.

In United States v. Kinder, 980 F.2d 961 (5th Cir.

1992), the court stated:

It is a fundamental principle of

sentencing that a district court may

conduct an inquiry broad in scope,

largely unlimited either as to the

kind of information it may consider,

or the source from which such

information may come. The scope of a

remand for resentencing includes new
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relevant factors proper in a de novo

review. In the interest of truth and

fair sentencing a court should be able

on a sentence remand to take new

matters into account on behalf of

either the government or the

defendant.

Although Kinder grants a district court wide

discretion in conducting an inquiry into the underlying

facts and evidence necessary in determining a

defendant's sentence, the holding is limited to the

gathering of relevant facts and evidence on the specific

and particular issues heard by the appeals court and

remanded for resentencing. In this appeal, we are asked

to decide whether Marmolejo, whose case we have remanded

to the district court for resentencing may there raise

for the first time issues that are unrelated to the

reason for the remand.

The minority view among the circuits states that

only those discrete, particular issues identified by the

appeals court for remand are properly before the

resentencing court, adopting a waiver approach. United

States v. Whren, 111 F.3d 956 (D.C.Cir. 1997); United

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

At the defendant's original sentencing, and over the

defendant's objection to the presentence investigation

report, the district court found that there existed

sufficient evidence in the record to support an

enhancement for obstruction of justice. The district
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court's ruling on the issue of Marmolejo's enhancement

for obstruction of justice was never appealed by either

the defendant or the Government, thus becoming the law

of the case. We hold that the district court correctly

refused to hear new evidence relating to Marmolejo's

sentence enhancement for obstruction of justice because

that determination was not before the district court on

remand.

This court specifically rejects the proposition that

all resentencing hearings following a remand are to be

conducted de novo unless expressly limited by the court

in its order of remand. This case was remanded for

resentencing. The fact that the appellate court did not

expressly limit the scope of the remand order did not

imply that a full blown sentencing hearing was

permissible for a second time, allowing evidence on all

issues that would affect the sentencing guidelines.

As stated by the minority view, we, too, reject the

de novo approach, because such an approach merely gives

a defendant a "second bite at the apple." Whren, at

959. It serves both justice as well as judicial economy

to require a defendant to raise all relevant and

appealable issues at the original sentencing rather 

than allowing a defendant to revisit issues with the

benefit of this court's opinion.

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

correction of the sentence ordered by this court. In

short, the resentencing court can consider whatever this

court directs--no more, no less. All other issues not

arising out of this court's 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.

On the issue of acceptance of responsibility, at

resentencing, the district court held that any evidence

offered by the defendant would not add to the court's

finding based upon the evidence already received in the

record. The court stated that there existed enough

evidence standing alone to find acceptance of

responsibility was not appropriate. The defendant

continued to minimize his involvement in the offense and

had not fully accepted responsibility for his actions.

Evidence against obstruction of justice would affect the

finding on acceptance of responsibility only if the

court made the finding solely because of the conflict

between the two provisions. Here, the court explicitly

denied the acceptance-of-responsibility reduction for

reasons unrelated to obstruction of justice. Even after

hearing the defendant's proffer, the district court

found that the additional evidence proffered still had

no effect upon his determination on the issue of
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acceptance of responsibility.

The district court's finding on the issue of

acceptance of responsibility can only be disturbed if

found to be clearly erroneous. The court below took

evidence on acceptance of responsibility at the original

sentencing, and accepted a proffer of evidence at the

second sentencing hearing. Additionally, as noted in

this court's opinion, the adjustment is ordinarily not

appropriate when the defendant insists upon his right to

trial and denies the essential elements of guilt.

Marmolejo, at 1216.

Under USSG § 3E1.1(a) a defendant must show

"recognition and affirmative acceptance of personal

responsibility for his criminal conduct." Note 2 of

USSG § 3E1.1 provides that, although a defendant may

receive this reduction even if he proceeded to trial,

the adjustment "is not intended to apply to a defendant

who puts the government to its burden of proof at trial

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

only then admits guilt and expresses remorse."

The district court did not refuse to hear additional

evidence on acceptance of responsibility. Rather, the

court made a finding based upon the evidence already in

the record and after the benefit of proffered evidence,

that a reduction based upon acceptance of responsibility

was not appropriate under the facts presented to the

court.

The district court's finding on the question of

acceptance of responsibility is ordinarily given great

deference on appeal because the determination involves

an assessment of credibility. We find that the court's

determination was not clearly erroneous.

Finally, Marmolejo argues that although not

expressly raised on first appeal, the question of

obstruction of justice was so intertwined with the issue

of acceptance of responsibility that the district court

could properly hear evidence on both issues. This

court's opinion reflects the close relationship between

the two issues. Marmolejo, 106 F.3d at 1217.

Although the issue of obstruction of justice

impacted the issue of defendant's acceptance of

responsibility, it did not resuscitate the issue de

novo. This relationship was discussed at some length in

this court's opinion, merely to explain the interplay of
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a defendant's obstruction with his denial of credit for

acceptance of responsibility.

Additionally, the record reflects that the district

court accepted a proffer on both issues, but found that

the evidence offered by the defendant to deny

Marmolejo's involvement in obstruction of justice would

not assist him in his request for a reduction based upon

acceptance of responsibility.

For the foregoing reasons, we affirm the judgment of

the district court.

AFFIRMED.