Appellate Procedure,  Federal Procedure,  Remittitur/Mandate

Scope of Remand Limits District Court Authority

In United States v. Davis, case no. 06-10527 (9th Cir. Mar. 19, 2008), we have a case where the district court either didn’t realize its limitations or just didn’t read the mandate right.  Whatever the cause, this case provides a succinct and to-the-point reminder of the point made in the title of this post.

The Ninth originally remanded with instructions to strike a conviction and sentence on count four and for the court to determine if it would have imposed the same sentence if it had known that the sentencing guidelines were advisory rather than mandatory.  The district court struck the conviction and sentence on count four, declared it would have imposed the same sentence had it considered the guidelines advisory only, but then substantially increased the sentence on count three.

Where this court expressly limits the scope of remand, the district court is without authority to reexamine other sentencing issues on remand. United States v. Pimentel, 34 F.3d 799, 800 (9th Cir. 1994). In this case, the district court exceeded its authority when it increased Davis’s sentence on count three. We therefore vacate Davis’s sentence and instruct the district court to reimpose his original sentence, except that no sentence shall be imposed on count four. No adjustment shall be made with respect to any other count.

As if worried that didn’t get the point across, the opinion finishes by noting the case is remanded “for the sole purpose of resentencing as provided in this opinion. ”

Point made.  By the way, Davis is a wonderfully succinct opinion that is barely longer than this post.