USA v. Demetrick Boyd, No. 13-5740 (6th Cir. 2013)
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 13a1004n.06 No. 13-5740 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DEMETRICK BOYD, Defendant-Appellant. ) ) ) ) ) ) ) ) ) Nov 26, 2013 DEBORAH S. HUNT, Clerk ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY Before: SUTTON and GRIFFIN, Circuit Judges, and DOWD, District Judge.* SUTTON, J. Demetrick Boyd first visited our court when he appealed his 248-month sentence for several drug and gun-possession convictions. After reviewing Boyd s sentence, this panel remanded the case to the district court for further consideration . . . in view of . . . Dorsey [v. United States], 132 S. Ct. 2321 [(2012)]. United States v. Boyd, 478 F. App x 323, 324 (6th Cir. 2012) (per curiam). We wrote that [i]t may well be that the district court, now aware of the subsequent decision in Dorsey, might well conclude that an additional variance is justified. Id. (emphasis added). On remand, the district court gave Boyd s case a fresh look and imposed a higher sentence: 262 months 14 months longer than Boyd s original sentence. R. 136 at 39, 43. * The Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern District of Ohio, sitting by designation. No. 13-5740 United States v. Boyd When an appeals court issues a remand order that is limited by its terms to a discrete issue, the district court s authority is constrained to the issue or issues remanded. United States v. Williams, 522 F. App x 278, 279 (6th Cir. 2013) (internal quotation marks omitted). In such cases, a fresh look is unwarranted and exceeds the scope of the district court s sentencing authority. See United States v. Moore, 131 F.3d 595, 598 (6th Cir. 1997). In this instance, we remanded Boyd s case to the district court for resentencing in view of Dorsey, including for consideration of whether an additional variance is justified. Boyd, 478 F. App x at 324. No doubt, a vacatur and general remand for resentencing would allow[] the district court to resentence the defendant de novo. Moore, 131 F.3d at 597. But that did not happen here. Our mandate allowed the district court to consider one, and only one, issue: whether the Supreme Court s decision in Dorsey entitled Boyd to a lower sentence. It did not allow the court to impose a higher sentence. The government insists that the remand d[id] not unmistakably direct the district court to only consider whether to impose a downward variance in Boyd s case. App ee Br. at 12. True enough, one phrase in the opinion taken by itself said that the district court could conclude that an additional variance is justified, Boyd, 478 F. App x at 324, seemingly leaving open the possibility that the variance could go up or down. But we do not read phrases by themselves. The additional variance phrase appeared in the context of a paragraph discussing the more lenient [Fair Sentencing Act] penalties applicable to convicts like Boyd after the Supreme Court s Dorsey decision, id. (emphasis added), and a paragraph discussing the district court s decision to grant a -2- No. 13-5740 United States v. Boyd downward variance in Boyd s original sentence, id. (emphasis added). In context, the additional variance possibility concerned the possibility of an additional downward variance, not an additional upward one. The government persists that the remand does not unmistakably forbid the district court from properly calculating Boyd s career offender guideline [range]. App ee Br. at 12. But if an appellate court may accomplish a limited remand only by detailing all the things that a district court may not do, the boundary between general and limited remands will disappear. As has long been the case, general remands allow district courts to conduct full, fresh sentencings without constraining the evidence or arguments that the district courts may consider, and limited remands allow district courts to consider the issue or issues remanded and nothing more. Moore, 131 F.3d at 597 98. We vacate the district court s sentence and remand Boyd s case for the limited purpose of reimposing his original 248-month sentence. -3-
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