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The Honorable David W. McKeague, United States District Judge for the Western District

of Michigan, sitting by designation.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 04a0158n.06

Filed: December 13, 2004

No. 03-6685

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MAURICE HUGHLEY,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE

Before: GILMAN and SUTTON, Circuit Judges; McKEAGUE, District Judge.*

PER CURIAM. Maurice Hughley appeals his 37-month sentence for mail fraud and failure

to appear. For the following reasons, we affirm.

I.

On February 12, 2001, Hughley pleaded guilty to mail fraud in connection with a false

credit-card application. After he failed to appear for his sentencing hearing on this charge, he was
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United States v. Hughley

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arrested and pleaded guilty (on July 31, 2002) to an additional charge of failing to appear. At the

July 31 hearing, the district court sentenced Hughley to concurrent sentences of 37 months for the

two charges, as well as three years of supervised release.

Hughley appealed, arguing that the district court failed to ascertain whether Hughley and his

attorney had discussed the presentence report before the sentencing hearing. The government

conceded error, and this court reversed and remanded for resentencing. United States v. Hughley,

Nos. 02-6006 & 02-6007, 2003 WL 21500164, at *1 (6th Cir. June 25, 2003) (“Hughley I”). After

briefly introducing the case, this court’s entire order contained the following:

Hughley does not dispute the validity of his convictions. Instead, he argues that his

case should be remanded for resentencing because the district court did not verify

that he and his attorney had read and discussed the presentence report. The

government properly agrees that a remand is necessary for this reason.

Accordingly, Hughley’s sentences are both vacated and his case is remanded

to the district court for resentencing.

Id. (citations omitted). 

In September 2003, on remand, Hughley filed several new pro se objections to the

presentence report as well as a motion for a downward departure. At his resentencing hearing, the

district court asked Hughley’s attorney whether she and Hughley had discussed the presentence

report. Hughley’s counsel responded affirmatively, and the court asked if there was anything

further. Hughley’s counsel stated that there was not, but Hughley interjected, bringing up the new

objections he had filed. In refusing to consider the new objections, the district court reasoned (1)
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United States v. Hughley

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that Hughley had discussed the presentence report with counsel before the first sentencing hearing

and no one had raised these objections at that point, and (2) that it would not permit new pro se

objections since Hughley was represented by counsel. The district court then resentenced Hughley

to the original 37-month sentences on each count, again to run concurrently.

Through his attorney, Hughley has claimed on appeal that the district court committed

reversible error by failing to make judicial findings regarding his new objections. And on his own,

Hughley has filed a supplemental brief challenging his conviction for the first time on a variety of

constitutional grounds. 

II.

Appellate courts have the authority to grant general or limited remands. United States v.

Campbell, 168 F.3d 263, 265 (6th Cir. 1999); 28 U.S.C. § 2106 (“The Supreme Court or any other

court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree,

or order of a court lawfully brought before it for review, and may remand the cause and direct the

entry of such appropriate judgment, decree, or order, or require such further proceedings to be had

as may be just under the circumstances.”). When this court issues a general remand, the district

court may resentence a defendant with de novo review of any relevant sentencing factors. United

States v. Orlando, 363 F.3d 596, 601 (6th Cir. 2004) (“Orlando II”). When this court issues a

limited remand, “a district court’s authority is constrained to the issue or issues remanded.” Id.

(quotation marks omitted). Remands are presumed general in the absence of limiting language.
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United States v. Moore, 131 F.3d 595, 598 (6th Cir. 1997). “To constitute a limited remand, the

appellate court must convey clearly its intent to limit the scope of the district court’s review.”

Orlando II, 363 F.3d at 601 (quotation marks omitted). In our de novo review of whether a remand

is limited or general, see Moore, 131 F.3d at 598, we may consider the “specific language used in

the context of the entire opinion or order,” Campbell, 168 F.3d at 267–68.

In United States v. Orlando, 281 F.3d 586 (6th Cir. 2002) (“Orlando I”), this court found that

the district court erred by failing to make “specific findings to justify holding Orlando accountable

for $449,000 of laundered money,” which raised his base offense level by three points. Id. at 601.

The court concluded its opinion with the following language: “For these reasons, we conclude that

the district court erred in enhancing Orlando’s base offense level by three points without making

specific factual findings concerning the amount of laundered funds for which he was accountable.

Orlando’s sentence must therefore be vacated, and we must remand for resentencing.” Id. On

remand, the district court stated that the remand was “limited to determining the amount of

laundered funds properly attributable to Orlando” and that “the limited remand required it to apply

the guidelines that were in effect at the time of original sentencing.” Orlando II, 363 F.3d at 600.

In Orlando II, we agreed with the district court, finding that this court “clearly conveyed in

its [Orlando I] Opinion of February 25, 2002, that its remand for resentencing was limited to

determining the amount of laundered money for which [ ] Orlando should be held accountable.” Id.

at 601. See also United States v. O’Dell, 320 F.3d 674, 680 (6th Cir. 2003) (finding a limited

remand where this court earlier had found clearly erroneous the district court’s application of a
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“safety valve” for mandatory minimum sentencing and “remand[ed] for re-sentencing without

application of the safety valve”).

As in the Orlando cases, the government argues that our earlier remand was a limited one,

which precluded Hughley from raising additional challenges to his conviction and sentence. Once

the district court determined that Hughley and his counsel had discussed the presentence report, the

government argues, the purpose of the narrow remand had been satisfied and there was nothing left

for the district court to do—except to reinstate the original sentences. Hughley offers no response

to the government’s argument on this score.

We agree with the government. Consistent with the Orlando cases, the language of our prior

order suggests that it was a limited remand. That order, to repeat, said the following:

Hughley does not dispute the validity of his convictions. Instead, he argues that his

case should be remanded for resentencing because the district court did not verify

that he and his attorney had read and discussed the presentence report. The

government properly agrees that a remand is necessary for this reason.

Accordingly, Hughley’s sentences are both vacated and his case is remanded

to the district court for resentencing.

Hughley I, 2003 WL 21500164, at *1 (emphasis added; citations omitted).

The context of our earlier order prompts a similar conclusion. Hughley raised just one

limited issue in his first appeal: that the district court had failed to adhere to Rule 32 of the Federal

Rules of Criminal Procedure because it did not specifically find that Hughley and his counsel

discussed the presentence report. Having successfully obtained a remand on that issue, he filed

numerous new objections to the same report—objections that could have been filed before the first

sentencing hearing and appealed during the first appeal. Under these circumstances, the district
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court properly limited its rehearing consideration to the reason for the remand and declined to hear

Hughley’s new arguments, including his new challenges to his conviction on speedy-trial grounds,

among others. As we have noted before in a similar setting:

The law-of-the-case doctrine bars challenges to a decision made at a previous stage

of the litigation which could have been challenged in a prior appeal, but was not. A

party who could have sought review of an issue or a ruling during a prior appeal is

deemed to have waived the right to challenge that decision thereafter, for it would

be absurd that a party who has chosen not to argue a point on a first appeal should

stand better as regards the law of the case than one who had argued and lost. 

United States v. Adesida, 129 F.3d 846, 850 (6th Cir. 1997) (quotation marks and citations omitted).

Having failed to raise these new issues in his first appeal and having failed to “dispute the validity

of his convictions” in his first appeal, Hughley I, 2003 WL 21500164, at *1, Hughley cannot raise

these issues now.

III.

For these reasons, we affirm.