                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0802n.06
                           Filed: November 1, 2006

                                           No. 04-4410

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
               Plaintiff-Appellee,               )
                                                 )           ON APPEAL FROM THE
       v.                                        )           UNITED STATES DISTRICT
                                                 )           COURT FOR THE NORTHERN
JOSEPH PAUL FRANKS,                              )           DISTRICT OF OHIO
                                                 )
               Defendant-Appellant.              )           OPINION



Before: MARTIN and RYAN, Circuit Judges; MARBLEY, District Judge.*

       ALGENON L. MARBLEY, District Court Judge.

       Defendant Joseph Franks appeals the district court’s order sentencing him to 78 months

of incarceration, imposed following remand from this court’s judgment in United States v.

Franks, 98 Fed. Appx. 483 (6th Cir. May 27, 2004) (“Franks I”). Defendant claims that the

district court violated the Sixth Amendment when it improperly calculated the amount of cocaine

for which he should be held responsible. Additionally, Defendant argues that the district court

violated the Sixth Amendment when it improperly enhanced his offense level by two points for

possession of a firearm, pursuant to § 2D1.1(b)(1) of the Sentencing Guidelines. We affirm the

district court’s determination of the amount of cocaine attributable to Defendant and that court’s



*
The Honorable Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.
application of a two point sentence enhancement because Franks waived these arguments when

he failed to pursue them during his earlier appeal of this case.

                                           I. BACKGROUND

          On June 14, 2002, Franks was convicted by a jury of conspiring to distribute cocaine, in

violation of 21 U.S.C. §§ 841(a)(1) and 846, and of four counts of use of a communication

facility to facilitate the conspiracy, in violation of 21 U.S.C. § 843(b). As part of its guilty

verdict, the jury specifically found that Franks had conspired to distribute less than 500 grams of

cocaine.1 Following a bench trial, which occurred directly after the jury trial, the district court

convicted Franks of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §

922(g).

          During Franks’ original sentencing proceeding on September 12, 2002, the district court

calculated his base offense level as 24. Then, the district court adopted the Presentence

Investigation Report (PSR) recommendation for a two level enhancement for possession of a

firearm. The district court also adopted the PSR recommendation for an eight level enhancement

because it found Franks to be a “career offender,” pursuant to section 4B1.1 of the Sentencing

Guidelines, due to his two previous state convictions for possession of cocaine, in violation of

Ohio Revised Code §§ 2925.03 and 2925.11, respectively.2 Accordingly, the district court



          1
              The indictment charged Franks with conspiring to distribute five or more kilograms of
cocaine.
          2
         Franks did not object to either of the PSR’s recommendations. He did argue, however,
that the district court should depart downward from the otherwise applicable total offense level
of 34 under the career offender provision to level 26, which still included a two level
enhancement for possession of a firearm. The district court denied Franks’ request for a
downward departure.

                                                     2
assigned Franks a total offense level of 34, and sentenced him to a term of 262 months

incarceration for the conspiracy conviction, a term of 48 months incarceration for each use-of-

communications-facility conviction to run concurrent with each other and with the sentence for

the conspiracy conviction, and a term of 120 months incarceration for the felon-in-possession

conviction to run concurrent with the other sentences. Franks timely appealed.

       In Franks’ first appeal, this court affirmed his convictions, but vacated his sentence and

remanded the case to the district court for resentencing. Franks I, 98 Fed. Appx. 483. In our

decision on the sentencing issue, we held that “the district court erred in applying the [career

offender] enhancement because Franks’s conviction under Ohio Revised Code § 2925.11 does

not constitute a ‘drug possession offense’ and, hence, Franks does not have ‘two prior felony

convictions of either a crime of violence or a controlled substance offense.’” Id. at 488 (quoting

United States Sentencing Commission, Guidelines Manual, § 4B1.1(a) (Nov. 2001)). We

remanded this case for resentencing, notwithstanding Franks’ failure to object to the imposition

of the enhancement, because the parties agreed that Franks should be resentenced without the

application of the career offender enhancement. Id.

       During his resentencing proceeding on November 3, 2004, Franks raised two issues in

addition to the “career offender” enhancement that formed the basis for the remand order. First,

Franks argued that the jury’s verdict that his conspiracy offense involved less than 500 grams of

cocaine required the district court to apply a base offense level of 12, the lowest level authorized

by the jury’s verdict. Second, Franks argued that the evidence did not support, and the jury’s

verdict did not authorize, the application of a firearm enhancement. Despite Franks’ arguments,

the district court applied a base offense level of 24, which corresponded to an offense that


                                                  3
involved at least 400 grams, but less than 500 grams of cocaine, and it applied a two level

enhancement for possession of a firearm, pursuant to section 2D1.1(b)(1) of the Sentencing

Guidelines.3 Accordingly, the district court assigned Franks a total offense level of 26, with a

criminal history category of III, and sentenced him to a term of 78 months incarceration.4 Franks

appealed the district court’s order for a second time.

                                          II. ANALYSIS

       As a threshold matter, we must determine whether our previous remand of this case was

general or limited.5 Appellate courts have the authority to grant remands that are either general

or limited in scope. 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



       3
        In rendering its resentencing decision, the district court explained, “this Court interprets
the remand as limited, and, consequently, did not hear any objections that extend beyond the
career offender provisions.”
       4
          The district court sentenced Franks to a term of 78 months incarceration for the
conspiracy conviction, a term of 48 months incarceration for each use-of-communications-
facility conviction to run concurrent with each other and with the sentence for the conspiracy
conviction, and a term of 78 months incarceration for the felon-in-possession conviction to run
concurrent with the other sentences.
       5
       A district court’s determination as to whether a remand is general or limited is reviewed
de novo. United States v. O’Dell, 320 F.3d 674, 679 (6th Cir. 2003) (citing United States v.
Moore, 131 F.3d 595, 598 (6th Cir. 1997)).
                                                4
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. (internal quotation omitted). “To constitute a

limited remand, the appellate court must convey clearly its intent to limit the scope of the district

court’s review.” Id. at 601 (internal quotation omitted). The language used to limit the scope of

the district court’s review “could appear anywhere in an opinion or order, including a designated

paragraph or section, or certain key identifiable language.” Campbell, 168 F.3d at 267.

       This court’s reasoning in Orlando II is instructive here on the issue of limited remand.

363 F.3d at 601. In United States v. Orlando, 281 F.3d 586 (6th Cir. 2002) (“Orlando I”), we

found that the district court had erred when it failed to make “specific findings to justify holding

Orlando accountable for $449,000 of laundered money,” which raised his offense level by three

points. Id. at 601. The Orlando I court used 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. When Orlando appealed the district court’s resentencing order on a separate

issue, the Orlando II court declined review, holding that the language of the prior opinion

“clearly conveyed” that the “resentencing was limited to determining the amount of laundered

money for which [] Orlando should be held accountable.” 363 F.3d at 601.

       Similarly, we found that the language of a prior order suggested a limited remand in

United States v. Hughley, 118 Fed. Appx. 896, 898 (6th Cir. 2004) (“Hughley II”). In United

States v. Hughley, 68 Fed. Appx. 616 (6the Cir. 2003) (“Hughley I”), this court held:

               Hughley does not dispute the validity of his convictions. Instead,
               he argues that his case should be remanded for resentencing

                                                  5
               because the district court did not verify that he and his attorney has
               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. at 616. After his case was remanded to the district court, pursuant to Hughley I, Hughley filed

numerous new objections to his presentence report, but the district court limited its rehearing

consideration to the reason for remand – verification that Hughley and his attorney had read and

discussed the presentence report – and declined to hear Hughley’s new arguments. Hughley II,

118 Fed. Appx. at 898. In Hughley’s second appeal of his sentence, this court held that it could

not hear his new issues because Hughley I constituted a limited remand. Id. at 898–99.

       In this appeal, we must determine whether the Franks I decision constituted a limited

remand. We find that it does. Much like the language identified in the Orlando and Hughley

cases, the language in the Franks I opinion ordered a limited remand when it explained,

“[b]ecause, as the parties concur, Franks’s conviction under § 2925.11 does not constitute a

‘crime of violence’ or a ‘controlled substance offense,’ and because the parties agree that Franks

should be resentenced notwithstanding his failure to object to the imposition of the enhancement,

we remand for resentencing.” 98 Fed. Appx. at 488. Our holding that Franks I ordered a limited

remand, as opposed to a general remand, is further buttressed by the fact that Franks I restricts its

sentencing analysis to a single issue: whether the district court erred in applying the “career

offender” sentencing enhancement. The Franks I court did not consider any other component of

the district court’s sentencing determination. Therefore, our previous order in Franks I

constitutes a limited remand for the purpose of recalculating Franks’ total offense level without

applying the “career offender” enhancement.


                                                  6
        Having established that Franks I created a limited remand, we cannot now review any

new arguments to the district court’s sentencing determination. As we have explained before

under similar circumstances:

                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) (internal quotation and citations

omitted); see also United States v. McKinley, 227 F.3d 716, 718 (6th Cir. 2000) (“when a party

fails to seek review of a district court’s final order, it is barred from reasserting that issue in any

subsequent appeals occurring in that case”) (citations omitted). In McKinley, we addressed this

precise issue. There, the government appealed the district court’s decision not to raise the

defendant’s total offense level for possessing firearms during a drug crime. Id. This court found

that the government waived its argument and was precluded from asserting it during a

subsequent appeal when the firearms enhancement issue was just as available to the government

during the first appeal. Id. With regard to the policy arguments behind the waiver doctrine, the

McKinley court stated that “[t]he waiver doctrine exists to forestall [] perpetual litigation by

notifying parties that they will forfeit their claims if they fail to seek review in the first appeal.”

Id. at 719.

        In this case, Franks could have sought review in his first appeal to this court on the issues

he raises today, but he did not. At Franks’ original sentencing proceeding in September 2002,

the district court calculated his base offense level as 24 and applied a two level enhancement for

                                                    7
possession of a firearm. In fact, during the original sentencing, defense counsel even asserted

that “this Court does have the authority to downward depart to what really truly reflects his

criminal history, which would be a level 26, criminal history category III, which would be a 78 to

97 month sentence. I mean, that’s really truly what the defendant should be sentenced to.”6 This

statement amounts to a concession that both the base offense level of 24 and the two level

enhancement for gun possession were appropriate. Even if Franks had not made this statement at

his original sentencing, though, he still would have relinquished his ability to seek review of

these issues by this court because he failed to raise them during his initial appeal.

       As set forth herein, although it appears that the Appellant Franks failed to make the

correct request for relief, it does appear that he timely raised a Sixth Amendment objection to the

District Court’s fact finding with respect to the weapon. The alleged Sixth Amendment error

may have affected the District Court’s decision as to the sentence imposed in this case.

Inasmuch as this sentence was imposed prior to the United States Supreme Court’s Decision in

United States v. Booker, 125 S.Ct. 738 (2005), and it is not clear either from the original

sentencing or resentencing hearings whether the District Judge was treating the Guidelines as

mandatory or advisory in fixing the range for Franks’s sentence, this case is remanded to the

District Court for reconsideration of the Court’s enhancement for possession of a firearm

pursuant to Section 2(D)1.1(b)(1) of the Advisory Sentencing Guidelines. Additionally, the

District Court is to reconsider any other aspects of the sentencing that might have been affected

by the Booker Decision.



       6
        This court acknowledges that Franks is now represented by a different attorney than the
one who represented him at trial and during his original sentencing. That fact alone, however,
does not change the result of this appeal.
                                                8
9
                                     III. CONCLUSION

      For the foregoing reasons, the district court’s resentencing decision is hereby

AFFIRMED and the case is remanded for resentencing under Booker.




                                               10
       RYAN, Circuit Judge, concurring.                I concur in the result reached in my brother’s

opinion, and in most of the underlying analysis. I do think, however, that it is not necessary to

address the issue whether our remand in Franks I was general or limited because, in either case,

Franks forfeited his argument that the district court improperly applied a two-point enhancement

for possession of a firearm by not raising it during the initial sentencing hearing or appeal.

Although a general remand permits the district court to “entertain any issues it feels are relevant

to the overall sentencing decision,” it “does not give the parties license to re-assert issues that

they should have raised during an earlier appeal.” United States v. McKinley, 227 F.3d 716, 718

(6th Cir. 2000).

       That said, I concur in the judgment for affirmance.




                                                  11
