US v. Jose Perez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:07-cr-00063-GEC-JGW-18. Copies to all parties and the district court/agency. [998923956].. [12-6303]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6303

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE LUIS JAIME PEREZ, a/k/a Pri, a/k/a Canello, a/k/a Jose
Luis Jaimes Perez,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.
Glen E. Conrad, Chief
District Judge. (5:07-cr-00063-GEC-JGW-18)

Submitted:

August 16, 2012

Decided:

August 24, 2012

Before GREGORY, DAVIS, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Paul G. Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke,
Virginia, for Appellant.
Donald Ray Wolthuis, Assistant United
States Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIUM:
Jose Luis Jaime Perez was convicted, following a jury
trial,

of

conspiracy

to

manufacture,

distribute,

and

possess

with intent to distribute more than five kilograms of cocaine,
in violation of 21 U.S.C. § 846 (2006).

The district court

initially sentenced Perez to 262 months’ imprisonment.

Perez

appealed his sentence and the district court’s denial of his
motion for new counsel, which he filed after his conviction but
before sentencing.
counsel,

but

We affirmed the denial of the motion for new

reversed

Perez’s

sentence

because

the

district

court failed to make the necessary findings to support a twolevel obstruction of justice enhancement under U.S. Sentencing
Guidelines Manual § 3C1.1 (2007), and remanded for resentencing.
United States v. Perez, 661 F.3d 189, 193-94 (4th Cir. 2011).
At

resentencing,

the

district

court

once

again

enhanced Perez’s base offense level of thirty-six by two levels,
pursuant to USSG § 3C1.1, for obstruction of justice, giving
Perez an adjusted offense level of thirty-four.
on

Perez’s

rehabilitation

efforts

since

his

However, based

first

sentencing

hearing, the court then varied downward by four offense levels,
finding that Perez’s need for rehabilitation had decreased, he
had accepted responsibility for his actions, and the original
262-month sentence was no longer necessary to deter Perez from
committing

further

crimes.

With
2

a

total

offense

level

of

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thirty-four
Perez’s

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and

placement

advisory

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in

Guidelines

criminal
range

history

was

168

category

to

210

imprisonment.

USSG ch. 5, pt. A (sentencing table).

sentenced

to

him

168

months

in

prison,

II,

months’

The court

the

bottom

has

of

filed

the

Guidelines range.
Perez

timely

appealed.

Counsel

a

brief

pursuant to Anders v. California, 386 U.S. 738 (1967), finding
no

meritorious

reasonableness
supplemental
sentence.

grounds
of

for

Perez’s

brief

appeal,

but

sentence.

challenging

challenging

Perez

both

his

filed

a

the

pro

conviction

and

se
his

For the reasons that follow, we affirm.
Perez’s pro se challenges to his conviction are barred

by

the

mandate

rule.

“The

mandate

rule

is

a

specific

application of the law of the case doctrine” to cases that have
been remanded on appeal.

Volvo Trademark Holding Aktiebolaget

v. Clark Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007).
limiting
within

subsequent

the

scope

proceedings

of

the

to

appellate

only

those

court’s

issues

mandate,

By

falling
the

rule

ensures that litigants in remanded cases get only one bite at
the

apple,

foreclosing

“relitigation

of

issues

expressly

or

impliedly decided by the appellate court.”

United States v.

Bell,

Pepper

5

States,

F.3d
131

64,

S.

66

Ct.

(4th

1229,

Cir.

1993);

1250-51

see

(2011)

v.

(recognizing

United
that

a

limited appellate mandate may restrict a resentencing court’s
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discretion

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to

depart

from

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the

district

court’s

original

sentencing determinations).
On appeal, a party waives “any issue that could have
been but was not raised” before the appellate court.
Chao, 511 F.3d 461, 465 (4th Cir. 2007).

Doe v.

Because it has not

been tendered to the appellate court for decision, an issue that
has been waived on an initial appeal is “not remanded” to the
district court even if other issues in the case are returned to
the court below.

Id.

Given that a waived argument is not

within the scope of the appellate mandate, the mandate rule thus
holds that, “where an argument could have been raised on an
initial appeal, it is inappropriate to consider that argument on
a second appeal following remand.”

Omni Outdoor Adver., Inc. v.

Columbia Outdoor Adver., Inc., 974 F.2d 502, 505 (4th Cir. 1992)
(internal quotation marks omitted).

See also Volvo, 510 F.3d at

481 (“[U]nder the mandate rule[,] a remand proceeding is not the
occasion for raising new arguments or legal theories.”); United
States v. Susi, 674 F.3d 278, 285 (4th Cir. 2012) (“[W]hile
Pepper allows district courts the flexibility to address any
component of the sentencing decision that it must in order to
‘effectuate

its

sentencing

intent,’

that

fundamentally alter the rule of waiver.”).
challenge

his

conviction

in

his

4

first

decision

does

not

Perez’s failure to

appeal

precludes

his

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efforts to challenge it before this Court now.

Omni, 974 F.2d

at 505.
Turning to his sentence, in both the Anders brief and
his pro se supplemental brief, Perez challenges the two-level
enhancement for obstruction of justice.

We review a sentence

for reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007).

In assessing

whether a sentencing court properly applied the Guidelines, the
district court’s factual findings are reviewed for clear error
and its legal conclusions are reviewed de novo.

United States

v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008).

We will “find

clear error only if, on the entire evidence, [we are] left with
the

definite

committed.”
Cir.

and

firm

conviction

that

a

mistake

has

been

United States v. Manigan, 592 F.3d 621, 631 (4th

2010)

(internal

quotation

marks

and

citation

omitted;

alteration in original).
Perez

argues

that

the

district

court

exceeded

the

scope of this Court’s mandate when it reimposed the two-level
enhancement for obstruction of justice.

However, our previous

opinion remanded for resentencing without limiting the district
court

to

specific

resentencing,
district

which

court,

in

issues.

Such

does

place

not

effect

orders

a

“general

any
a

de

remand”

limitations
novo

on

for
the

resentencing.

Pepper, 131 S. Ct. at 1250; United States v. Fields, 552 F.3d
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401, 404 (4th Cir. 2009).

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Thus, the district court was free to

reconsider whether the obstruction of justice enhancement was
warranted.
Moreover,
obstruction

of

the

justice

district

court

enhancement.

properly
In

order

applied
to

apply

the
an

obstruction of justice enhancement based on perjured testimony,
a district court must make findings that clearly establish that
the defendant willfully, with the intent to deceive, falsely
testified about a material matter.
On

remand,

the

Perez, 661 F.3d at 192-93.

district

court

found

that

Perez

willfully obstructed justice both through his false testimony at
trial

and

through

his

conduct

at

the

time

of

his

arrest.

Specifically, the court found that Perez falsely testified when
he

denied

trafficking,

under
which

oath

that

directly

he

was

involved

contradicted

testimony which the jury found more credible.

in

cocaine

Government

witness

Second, the court

found that Perez’s false testimony concerned a material matter,
namely his guilt or innocence.

Finally, the court found that

Perez acted willfully with the intent to deceive not only by
testifying in direct contradiction to witnesses whose testimony
the jury found more credible, but also by his behavior during
his arrest when he denied any wrongdoing, refused to identify
himself to the police or provide his home address, and when
officers entered his home, shouted at a woman in the house not
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to

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answer

conclude

the

that

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officers’
the

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questions

district

court’s

or

reveal

findings

his
are

name.
not

We

clearly

erroneous and clearly establish the three elements necessary to
support a two-level enhancement for obstruction of justice.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal.

We therefore affirm.

This Court requires that counsel

inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review.

If the

client requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move
in

this

Court

for

leave

to

withdraw

from

representation.

Counsel’s motion must state that a copy of the motion was served
on his client.

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials
before

the

court

and

argument

would

not

aid

the

decisional

process.
AFFIRMED

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