United States v. Douglas Greg Cornelius, 968 F.2d 703 (8th Cir. 1992). · Go Syfert
United States v. Douglas Greg Cornelius, 968 F.2d 703 (8th Cir. 1992). Cases Citing This Book View Copy Cite
127 citation events (58 in the last 25 years) across 21 distinct courts.
Treatment trajectory · 1992 → 2026 · click a year to view as-of
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examined Cited as authority (verbatim quote) United States v. Kenneth R. Moore (4×) also: Cited as authority (rule)
6th Cir. · 1997 · signal: accord · quote attribution · 2 verbatim quotes · confidence high
the sentencing court must, however, , adhere to any limitations imposed on its function at resentencing by the appellate court.
examined Cited as authority (verbatim quote) United States v. William Michael Midgett
4th Cir. · 1993 · signal: cf. · quote attribution · 1 verbatim quote · confidence high
once a sentence has been vacated or a finding related to sentencing has been reversed and the case has been remanded for resentencing, the district court can hear any relevant evidence on that issue that it could have heard in the first hearing.
discussed Cited as authority (rule) United States v. Garza
5th Cir. · 2025 · confidence medium
Id. at 323 n.4 (citing United States v. Moore, 131 F.3d 595, 598 (6th Cir. 1997); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992); United States v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995); and United States v. Smith, 116 F.3d 857, 859 (10th Cir. 1997)).
discussed Cited as authority (rule) United States v. Michael Norwood
3rd Cir. · 2022 · confidence medium
See, e.g., United States v. Jennings, 83 F.3d 145, 151 (6th Cir. 1996), amended by 96 F.3d 799 (6th Cir. 1996); United States v. Cornelius, 968 F.2d 703, 705-06 (8th Cir. 1992); United States v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995); United States v. Smith, 930 F.2d 1450, 1456 (10th Cir. 1991); United States v. Stinson, 97 F.3d 466, 468-69 (11th Cir. 1996).
discussed Cited as authority (rule) United States v. Rodney Henry
6th Cir. · 2016 · confidence medium
See United States v. Moore, 131 F.3d 595, 598 (6th Cir.1997) (noting that when a circuit court issues a general remand, “the district court [may] resentence the defendant de novo” (citing United States v. Young, 66 F.3d 830, 836 (7th Cir.1995); United States v. Caterino, 29 F.3d 1390, 1394-95 (9th Cir.1994); United States v. Cornelius, 968 F.2d 703, 705-06 (8th Cir.1992))).
discussed Cited as authority (rule) United States v. Brant Rushton
7th Cir. · 2013 · confidence medium
At re-sentencing, the district court’s task was to apply a proper construction of the guidelines to the record already before it”); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992) (“once a sentence has been vacated or a finding related to sentencing has been reversed and the case has been remanded for resentencing, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing,” though of course “the sentencing court must ... adhere to any limitations imposed on its function at resentencing by the appellate court”); United…
discussed Cited as authority (rule) United States v. Castellanos
8th Cir. · 2010 · confidence medium
“When an appellate court remands a case to the district court, all issues decided by the appellate court become the law of the case, and the district court on remand must ‘adhere to any limitations imposed on its function ... by the appellate court.’ ” Id. (quoting United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992)) (internal citation omitted).
discussed Cited as authority (rule) United States v. King
8th Cir. · 2010 · confidence medium
Accordingly, we remand to the district court for further proceedings consistent with our description of the categorical approach and our explanation of the holding in Vincent II. 6 We do not impose any limitations on the evidence that the district court may consider on remand, so the court “can hear any relevant evidence ... that it could have heard at the first hearing,” United States v. Dunlap, 452 F.3d 747, 750 (8th Cir.2006) (quoting United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992)).
discussed Cited as authority (rule) United States v. Miller
3rd Cir. · 2010 · confidence medium
See, e.g., United States v. Jennings, 83 F.3d 145, 151 (6th Cir.1996) (creating a default rule of de novo resentencing), amended by 96 F.3d 799 (6th Cir.1996); United States v. Cornelius, 968 F.2d 703, 705-06 (8th Cir.1992) (same); United States v. Ponce, 51 F.3d 820, 826 (9th Cir.1995) (same); United States v. Stinson, 97 F.3d 466, 469 (11th Cir.1996) (same).
discussed Cited as authority (rule) United States v. Batts
4th Cir. · 2010 · signal: cf. · confidence medium
United States v. Broughton-Jones, 71 F.3d 1143 , 1149 n. 4 (4th Cir. 1995); United States v. Smith, 930 F.2d 1450, 1456 (10th Cir.1991) (concluding that, absent explicit limitations, an order vacating a sentencing and remanding for resen-tencing “directs the sentencing court to begin anew, so that fully de novo resen-tencing is entirely appropriate” (internal quotation marks omitted)); cf. United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992) (“Once a sentence has been vacated or a finding related to sentencing has been reversed and the case has been remanded for resentencing, the…
discussed Cited as authority (rule) United States v. Lopez
E.D. Ky. · 2009 · confidence medium
We therefore VACATE ... [Defendant’s] sentence [ ] and REMAND for resentencing.” Finally, in United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992), the Eighth Circuit considered this order: “we reverse the district court’s determination that Cornelius was not an armed career criminal under §§ 924(e) and remand for resentencing.” As we explained, “each of these three mandates was a general mandate because each one of these cases involved a remand order that simply vacated or reversed the sentence imposed by the district court and remanded for re-sentencing.” Moore, 131 F.…
discussed Cited as authority (rule) United States v. Mark Davidson (2×)
8th Cir. · 2008 · confidence medium
United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992).
discussed Cited as authority (rule) United States v. Bueno
8th Cir. · 2008 · confidence medium
With respect to the additional evidence, we note that “[o]nce a sentence has been vacated or a finding related to sentencing has been reversed and the case has been remanded for resentencing, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing.” United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992).
discussed Cited as authority (rule) United States v. Elias Zavala
8th Cir. · 2008 · confidence medium
“Once a sentence has been vacated or a finding related to sentencing has been reversed and the case has been remanded for resentencing, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing.” United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992); see also United States v. Dunlap, 452 F.3d 747, 749-50 (8th Cir.2006).
discussed Cited as authority (rule) United States v. Donna Peterson
8th Cir. · 2007 · confidence medium
However, “[o]nce a sentence has been vacated . . . and the case has been remanded for resentencing, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing.” United States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992).
discussed Cited as authority (rule) United States v. Peterson
8th Cir. · 2007 · confidence medium
However, "[o]nce a sentence has been vacated ... and the case has been remanded for resentencing, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing.” United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992).
discussed Cited as authority (rule) United States v. Dan Kendall
8th Cir. · 2007 · confidence medium
Accordingly, we may remand for resentencing "with instructions to resentence the defendant on the existing record." United States v. Dunlap, 452 F.3d 747, 749 (8th Cir. 2006) (citing United States v. Poor Bear, 359 F.3d 1038, 1043-44 (8th Cir. 2004)). -3- Conversely, we may choose to remand "without placing any limitations on the district court [in which case it] 'can hear any relevant evidence . . . that it could have heard at the first hearing.'" Id. at 749-50 (quoting United States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992) (internal citations and parenthetical omitted)).
discussed Cited as authority (rule) United States v. Dan Kendall
8th Cir. · 2007 · confidence medium
Conversely, we may choose to remand “without placing any limitations on the district court [in which case it] ‘can hear any relevant evidence ... that it could have heard at the first hearing.’ ” Id. at 749-50 (quoting United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992) (internal citations and parenthetical omitted)).
discussed Cited as authority (rule) United States v. John M. Jenners (2×) also: Cited "see"
8th Cir. · 2007 · confidence medium
Generally, unless an appellate court has imposed limitations on the sentencing court's function at resentencing, "[o]nce a sentence has been vacated or a finding related to sentencing has been reversed and the case has been remanded for resentencing, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing." United States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992).
discussed Cited as authority (rule) United States v. John M. Jenners (2×) also: Cited "see"
8th Cir. · 2007 · confidence medium
Generally, unless an appellate court has imposed limitations on the sentencing court’s function at resentencing, “[o]nce a sentence has been vacated or a finding related to sentencing has been reversed and the case has been remanded for resentencing, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing.” United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992).
discussed Cited as authority (rule) United States v. Russell Hodge
8th Cir. · 2006 · confidence medium
When a sentence is vacated and remanded to the district court for resentencing, "'all issues decided by the appellate court become the law of the case,' and the sentencing court is bound to proceed within the scope of 'any limitations imposed on its function at resentencing by the appellate court.'" United States v. Behler, 100 F.3d 632, 635 (8th Cir. 1996) (quoting United States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995) & United States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992)), cert. denied, 522 U.S. 855 (1997).
discussed Cited as authority (rule) United States of America, Appellee/cross-Appellant v. Russell James Hodge, Also Known as Rusty Hodge, Appellant/cross-Appellee
8th Cir. · 2006 · confidence medium
When a sentence is vacated and remanded to the district court for resentencing, “ ‘all issues decided by the appellate court become the law of the case,’ and the sentencing court is bound to proceed within the scope of ‘any limitations imposed on its function at resentencing by the appellate court.’ ” United States v. Behler, 100 F.3d 632, 635 (8th Cir.1996) (quoting United States v. Bartsh, 69 F.3d 864, 866 (8th Cir.1995) & United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992)), cert. denied, 522 U.S. 855 , 118 S.Ct. 152 , 139 L.Ed.2d 98 (1997).
discussed Cited as authority (rule) United States v. William E. Dunlap
8th Cir. · 2006 · confidence medium
But where a court of appeals vacates a sentence or reverses a finding related to sentencing and remands the case for resentencing without placing any limitations on the district court, the court "can hear any relevant evidence on that issue that it could have heard at the first hearing." United States v. Cornelius, 968 F.2d 703,705 (8th Cir. 1992) (internal citations and parentheticals omitted); see also United States v. Behler, 100 F.3d 632, 635 (8th Cir. 1996), cert. denied, 522 U.S. 855 (1997); United States v. Kang, 197 F.3d 927, 928 (8th Cir. 1999) (per curiam); United States v. Curtis, 3…
discussed Cited as authority (rule) United States v. William E. Dunlap
8th Cir. · 2006 · confidence medium
But where a court of appeals vacates a sentence or reverses a finding related to sentencing and remands the case for resen- *750 tencing without placing any limitations on the district court, the court “can hear any relevant evidence on that issue that it could have heard at the first hearing.” United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992) (internal citations and parentheticals omitted); see also United States v. Behler, 100 F.3d 632, 635 (8th Cir.1996), cert. denied, 522 U.S. 855 , 118 S.Ct. 152 , 139 L.Ed.2d 98 (1997); United States v. Kang, 197 F.3d 927, 928 (8th Cir.1999…
cited Cited as authority (rule) United States v. Hopkins
D. Kan. · 2005 · confidence medium
See United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992).
cited Cited as authority (rule) United States v. Johnny Lang, Also Known as Melvin Pitchford, and Shari Lewis Lang
10th Cir. · 2005 · confidence medium
See United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992).
discussed Cited as authority (rule) United States v. Culbert
4th Cir. · 2003 · confidence medium
VACATED AND REMANDED *Because we instruct the district court to reconsider the amount of cocaine base attributable to Culbert for sentencing purposes, "the district court may consider the issue de novo, entertaining ‘any relevant evidence on that issue that it could have heard at the first hearing.’" United States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993) (quoting United States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992)).
discussed Cited as authority (rule) United States v. Jackson C. O'dell, III (2×)
6th Cir. · 2003 · confidence medium
We therefore VACATE ... [Defendant’s] sentence[ ] and REMAND for resentencing.” Finally, in United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992), the Eighth Circuit considered this order: “we reverse the district court’s determination that Cornelius was not an armed career criminal under §§ 924(e) and remand for resentenc-ing.” As we explained, “[e]aeh of these three mandates was a general mandate because each one of these cases involved a remand order that simply vacated or reversed the sentence imposed by the district court and remanded for re-sentencing.” Moore, 131 …
discussed Cited as authority (rule) United States v. Ernesto Quintieri, Carlo Donato
2d Cir. · 2002 · confidence medium
Stepp v. United States, 519 U.S. 975 , 117 S.Ct. 411 , 136 L.Ed.2d 324 (1996); United States v. Cornelius, 968 F.2d 703, 705-06 (8th Cir.1992) (same); United States v. Ponce, 51 F.3d 820, 826 (9th Cir.1995) (same); United States v. Smith, 930 F.2d 1450, 1456 (10th Cir.) (same), cert. denied, 502 U.S. 879 , 112 S.Ct. 225 , 116 L.Ed.2d 182 (1991); United States v. Stinson, 97 F.3d 466, 469 (11th Cir.1996) ('(Under [a] holistic approach, when a criminal sentence is vacated, it becomes void in its entirety; the sentence—including any enhancements—has been wholly nullified and the slate wiped c…
discussed Cited as authority (rule) United States v. McCoy (2×)
D.C. Cir. · 2002 · confidence medium
We rejected the de novo approach adopted by our sister courts in the Second, Sixth, Eighth, Ninth and Tenth Circuits, under which a “district court may, upon remand, take any evidence and hear any argument that it could have considered in the original sentencing proceeding.” Id. at 959 (citing United States v. Moore, 83 F.3d 1231, 1235 (10th Cir.1996); United States v. Jennings, 83 F.3d 145, 151 (6th Cir.), cert. denied, 519 U.S. 975 , 117 S.Ct. 411 , 136 L.Ed.2d 324 (1996); United States v. Atehortva, 69 F.3d 679, 685 (2d Cir.1995), cert. denied, 517 U.S. 1249 , 116 S.Ct. 2510 , 135 L.Ed.…
discussed Cited as authority (rule) United States v. McCoy, JoAnn (2×)
D.C. Cir. · 2002 · confidence medium
We rejected the de novo approach adopted by our sister courts in the Second, Sixth, Eighth, Ninth and Tenth Circuits, under which a "district court may, upon remand, take any evidence and hear any argument that it could have considered in the original sentencing proceeding." Id. at 959 (citing United States v. Moore, 83 F.3d 1231, 1235 (10th Cir.1996); United States v. Jennings, 83 F.3d 145, 151 (6th Cir.), cert. denied, 519 U.S. 975 , 117 S.Ct. 411 , 136 L.Ed.2d 324 (1996); United States v. Atehortva, 69 F.3d 679, 685 (2d Cir.1995), cert. denied, 517 U.S. 1249 , 116 S.Ct. 2510 , 135 L.Ed.2d 1…
cited Cited as authority (rule) United States v. Barth
4th Cir. · 2001 · confidence medium
Id. (quoting United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992)).
cited Cited as authority (rule) United States v. Gerome M. Randall
4th Cir. · 2000 · confidence medium
Bell, 5 F.3d at 6 (quoting United States v. Cor- nelius, 968 F.2d 703, 705 (8th Cir. 1992)).
discussed Cited as authority (rule) United States v. Bernard F. Bradstreet
1st Cir. · 2000 · confidence medium
That court, however, relied on circuit precedent that upon resentencing, " ' "the district court can hear any relevant evidence on that issue that it could have heard at the first hearing.” ’ ” Id. at 913 (quoting United States v. Behler, 100 F.3d 632, 635 (8th Cir.1996) (quoting United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992))).
discussed Cited as authority (rule) United States v. Lord Kang
8th Cir. · 2000 · confidence medium
Our remand order instructed the District Court to receive evidence to prove the drug quantity attributable to defendant, see Kang, 143 F.3d at 383 , and the District Court’s evidentiary rulings at sentencing were not binding at the de novo resentenc-ing hearing, see United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992) (at resentencing, district court can hear any relevant evidence on remanded issue that it could have heard at first hearing).
discussed Cited as authority (rule) United States v. Lord Kang
8th Cir. · 1999 · confidence medium
Our remand order instructed the District Court to receive evidence to prove the drug quantity attributable to defendant, see Kang, 143 F.3d at 383 , and the District Court’s evidentiary rulings at sentencing were not binding at the de novo resentencing hearing, see United States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992) (at resentencing, district court can hear any relevant evidence on remanded issue that it could have heard at first hearing). -2- Defendant’s second argument also fails: the government properly introduced and the resentencing court properly relied on the informant’s…
discussed Cited as authority (rule) United States v. Robinson
C.D. Ill. · 1999 · confidence medium
United States v. Caterino, 29 F.3d 1390, 1394-95 (9th Cir.1994); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992); United States v. Moore, 83 F.3d 1231, 1235 (10th Cir.1996); United States v. Sanchez Solis, 882 F.2d 693, 699 (2nd Cir.1989); United States v. Campbell, 168 F.3d 263, 265-66 (6th Cir.1999).
discussed Cited as authority (rule) United States v. Roosevelt Sims, III
8th Cir. · 1999 · confidence medium
Some of our prior decisions set forth what we believe is a sensible rule for determining on what matters a district court may rely in departing from the guidelines at a resentencing. "`Once a sentence has been vacated or a finding related to sentencing has been reversed and the case has been remanded for resen-tencing, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing.'" United States v. Behler, 100 F.3d 632, 635 (8th Cir.1996), cert. denied, - U.S. -, 118 S.Ct. 152 , 139 L.Ed.2d 98 (1997), quoting United States v. Cornelius, 968 F.2d…
discussed Cited as authority (rule) United States v. Roosevelt Sims
8th Cir. · 1999 · confidence medium
Some of our prior decisions set forth what we believe is a sensible rule for determining on what matters a district court may rely in departing from the guidelines at a resentencing. " 'Once a sentence has been vacated or a finding related to sentencing has been reversed and the case has been remanded for resentencing, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing.' " United States v. Behler, 100 F.3d 632, 635 (8th Cir. 1996), cert. denied, 118 S. Ct. 152 (1997), quoting United States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992…
discussed Cited as authority (rule) United States v. Victor Levy-Cordero
1st Cir. · 1998 · confidence medium
Although we could not have foreseen that Levy would be allowed to proceed as he did on remand, see United States v. Bell, 988 F.2d 247, 250 (1st Cir.1993) (an appellate disposition of an appeal must be read by the district court “against the backdrop of prior proceedings in the case”); United States v. Cornelius, 968 F.2d 703, 706 (8th Cir.1992) (a limited remand does not automatically rejuvenate other issues in a case), we recognize that in some situations, the trial court may possess limited discretion to examine or reexamine issues or evidence outside of the four corners of the remand.
discussed Cited as authority (rule) United States v. Michael A. Whren (2×)
D.C. Cir. · 1997 · confidence medium
See United States v. Atehortva, 69 F.3d 679, 685 (2d Cir.1995); United States v. Jennings, 83 F.3d 145, 151 (6th Cir.1996); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992); United States v. Ponce, 51 F.3d 820, 826 (9th Cir.1995); United States v. Moore, 83 F.3d 1231, 1235 (10th Cir.1996).
discussed Cited as authority (rule) United States v. John D. Behler
8th Cir. · 1996 · confidence medium
"Once a sentence has been vacated or a finding related to sentencing has been reversed and the case has been remanded for resentencing, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing." United States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992).
discussed Cited as authority (rule) United States v. John D. Behler
8th Cir. · 1996 · confidence medium
“Once a sentence has been vacated or a finding related to sentencing has been reversed and the ease has been remanded for resentencing, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing.” United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992).
discussed Cited as authority (rule) United States v. Kissick
10th Cir. · 1996 · confidence medium
See Kissick, 69 F.3d at 1053 -54 and n. 3 3 " '[T]he mandate rule': where the appellate court has not specifically limited the scope of the remand, the district court generally has discretion to expand the resentencing beyond the sentencing error causing the reversal." Moore, 83 F.3d at 1234 (citing United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992))
cited Cited as authority (rule) United States v. Van Pelt
D. Kan. · 1996 · confidence medium
See United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992).
discussed Cited as authority (rule) United States v. Moore
10th Cir. · 1996 · confidence medium
This is consistent with the parameters of what has been labeled “the mandate rule”: where the appellate court has not specifically limited the scope of the remand, the district court generally has discretion to expand the resentencing beyond the sentencing error causing the reversal. 3 See United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992).
discussed Cited as authority (rule) United States v. Thomas Chisolm Bartsh
8th Cir. · 1995 · confidence medium
When an appellate court remands a case to the district court, all issues decided by the appellate court become the law of the case, id., and the district court on remand must “adhere to any limitations imposed on its function at resentencing by the appellate court.” United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992) (citing United States v. Prestemon, 953 F.2d 1089 (8th Cir.1992) (trial court could not consider new bases for downward departure where remand was limited to resentencing within the applicable guideline range)).
discussed Cited as authority (rule) United States v. Julian M. Atehortva, Alejandro Correa
2d Cir. · 1995 · confidence medium
See United States v. Duso, 42 F.3d 365, 368 (6th Cir.1994) (noting that unless restricted by remand order, district court may “revisit the entire sentencing procedure”); United States v. Smith, 930 F.2d 1450, 1456 (10th Cir.) (in resentencing on remand, “the sentencing court [must] begin anew, so that ‘fully de novo sentencing’ is entirely appropriate” (emphasis omitted)), cert. denied, 502 U.S. 879 , 112 S.Ct. 225 , 116 L.Ed.2d 182 (1991); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992) (district court can hear any relevant evidence on issue presented that it could ha…
discussed Cited as authority (rule) United States v. Levy-Cordero
1st Cir. · 1995 · confidence medium
Although we could not have foreseen that Levy would be allowed to proceed as he did on remand, see United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993) (an appellate disposition of an appeal must be read by the district court "against the backdrop of prior proceedings in the case"); United States v. Cornelius, 968 F.2d 703, 706 (8th Cir. 1992) (a limited remand does not automatically rejuvenate other issues in a case), we recognize that in some situations, the trial court may possess limited discretion to examine or re-examine issues or evidence outside of the four corners of the remand.
discussed Cited as authority (rule) United States v. Sidney J. Dickler, Richard R. Petrucci. Sidney J. Dickler, in No. 94-3517. Richard R. Petrucci, in No. 94-3518
3rd Cir. · 1995 · confidence medium
See United States v. Ortiz, 25 F.3d 934, 935 (10th Cir.1994) (holding that an order vacating sentence and remanding for resentencing contemplates a de novo hearing at which court can receive any evidence it could have considered during first sentencing hearing); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992) (holding that district court erred in refusing to consider defendants’ evidence upon resentencing); United States v. Jacobs, 955 F.2d 7, 10 (2d Cir.1992) (per curiam) (where original sentence had been vacated because there was insufficient evidence connecting conspiracy’s…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Douglas Greg CORNELIUS, Appellant
91-3351.
Court of Appeals for the Eighth Circuit.
Jul 2, 1992.
968 F.2d 703
Dean Stowers, Des Moines, Iowa, argued, for appellant., Linda R. Reade, Des Moines, Iowa, argued, for appellee.
McMillian, Gibson, Magill.
Cited by 106 opinions  |  Published
MAGILL, Circuit Judge.

Douglas Greg Cornelius appeals his thirty-year sentence imposed pursuant to the enhancement provisions of 18 U.S.C. § 924(e) (armed career criminal) and the United States Sentencing Guidelines § 4B1.1 (career offender). The district court imposed the thirty-year sentence on remand, believing that it was foreclosed from addressing any issue other than the proper sentence term. We affirm in part, reverse in part and remand for resentenc-ing.

Cornelius was tried and convicted of being a felon in possession of a firearm on April 5, 1990. The government argued that Cornelius’ sentence should be enhanced because he is an armed career criminal under § 924(e) and a career offender under U.S.S.G. § 4B1.1. The district court found that Cornelius is a career offender. It held, however, that he is not an armed career criminal because the 1970 breaking and entering conviction on which the government relied did not qualify as a predicate felony under the statute. The court sentenced Cornelius to ten years’ imprisonment. Cornelius appealed the district court’s finding that he is a career offender, arguing that possession of a firearm by a felon is not a crime of violence under § 4B1.1. We found that possession of a firearm by a felon was a crime of violence under § 4B1.1 and affirmed the district court. [1] United States v. Cornelius, 931 F.2d 490 (8th Cir.1991). The government cross-appealed the finding that Cornelius was not an armed career criminal. We reversed and remanded for resen-tencing on this issue because we held that Cornelius’ 1970 breaking and entering conviction qualified as a predicate felony under § 924(e). Id.

At the resentencing hearing held October 3, 1991, Cornelius argued that one of the prior convictions relied on to enhance his sentence under § 924(e) was based on an invalid guilty plea and could not be used. Therefore, he argued, he is not an armed career criminal. In addition, Cornelius asserted that two prior convictions for arson and extortion are “related cases” under the Sentencing Guidelines and cannot be considered separate convictions for purposes of applying U.S.S.G. § 4B1.1 because they were consolidated for plea and sentencing. The district court allowed Cornelius to make an offer of proof, but held that, given this court’s finding that Cornelius is an armed career criminal as well as a career offender, it could only decide the proper sentence term on remand. In the alternative, the court held that the arson and extortion cases were not “related cases” under the Guidelines. The court found[*705] that the Guidelines range was thirty years to life, and sentenced Cornelius to thirty years.

On appeal, Cornelius argues that the district court erred in finding that it could not consider any new issues on remand. He claims that the district court erred in refusing to consider evidence that his guilty plea in the conviction used to enhance his sentence under § 924(e) was constitutionally invalid. He also claims that the district court erred when it refused to consider his argument that the two convictions used to enhance his sentence under U.S.S.G. § 4B1.1 were “related” cases under the Guidelines and could only be counted as one conviction rather than two.

I. Consideration of New Evidence on Remand

Cornelius first argues that the district court erred when it refused to consider new evidence about the validity of certain prior convictions used to enhance his sentence under § 924(e) and § 4B1.1. The government replies that the district court was correct because this court decided in the first appeal that Cornelius was both a career offender and an armed career criminal. Therefore, the mandate on remand was limited and only allowed the district court to decide the proper sentence term under the Guidelines given those findings. We disagree.

Once a sentence has been vacated or a finding related to sentencing has been reversed and the case has been remanded for resentencing, the district court can hear any relevant evidence on that issue that it could have heard at the first hearing. United States v. Smith, 930 F.2d 1450, 1456 (10th Cir.) (de novo resentencing on remand appropriate), cert. denied, - U.S. -, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991); United States v. Sanchez Solis, 882 F.2d 693, 699 (2d Cir.1989) (court on remand should be able to take new matter into account); United States v. Romano, 749 F.Supp. 53, 55 (D.Conn.1990) (on remand sentencing court may proceed as it might have in first instance), aff'd sub nom. United States v. Lanese, 937 F.2d 54 (2d Cir.1991). The sentencing court must, however, adhere to any limitations imposed on its function at resentencing by the appellate court. See United States v. Prestemon, 953 F.2d 1089 (8th Cir.1992) (trial court could not consider new bases for downward departure on remand where remand was limited to resentencing within the applicable guideline sentencing range); United States v. Cassity, 720 F.2d 451, 458 (6th Cir.1983) (district court erred when it considered issue of retroactivity of new case on remand where circuit court explicitly stated remand limited to determining whether privacy interest invaded), vacated on other grounds, 468 U.S. 1212, 104 S.Ct. 3581, 82 L.Ed.2d 879 (1984); see also Romano, 749 F.Supp. at 55. Therefore, we must decide whether our mandate to the district court in this case was specifically limited to resentencing within the applicable guideline range, as the court interpreted it, or whether the mandate was broad enough to allow the court to consider new evidence regarding whether Cornelius is an armed career criminal.

We find that the district court erred when it refused to hear Cornelius’ evidence relating to whether he is an armed career criminal. In the previous appeal, the issue presented was whether Cornelius’ 1970 conviction for breaking and entering constituted generic burglary under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The conviction could not be counted as a prior conviction for purposes of a sentence enhancement under § 924(e) unless it qualified as generic burglary. The district court held that it did not constitute generic burglary and, therefore, Cornelius was not an armed career criminal under § 924(e). We reversed on appeal. Cornelius, 931 F.2d 490. The government claims that we found that Cornelius is an armed career criminal, and that that finding is now the law of the case. Such a reading misinterprets our opinion. We held that “Cornelius’ 1970 conviction did constitute generic burglary under Taylor. Consequently, we reverse the distinct court’s determination that Cornelius was not an armed career criminal under § 924(e) and remand for resentencing.”[*706] Cornelius, 931 F.2d at 494. We did not find that Cornelius was an armed career criminal. We simply held that the district court was in error when it found that the 1970 conviction did not qualify as a prior conviction under § 924(e). We did not limit the district court’s further determination of whether Cornelius was an armed career criminal. Therefore, the district court was free to consider any new arguments raised at the resentencing as to whether Cornelius was an armed career criminal that could have been considered at the first hearing.

This is not, however, true for the issue of whether Cornelius was a career offender under § 4B1.1. We affirmed the district court’s finding that Cornelius was a career offender. We hold that the district court correctly refused to consider new evidence relating to Cornelius’ sentence enhancement as a career offender because that determination was not before the district court on remand. [2]

II. Collateral Attack of Prior Convictions

Cornelius received an enhanced sentence under § 924(e) on the basis of three prior convictions. Under the statute a court must impose a minimum fifteen-year sentence if a defendant is found guilty of possessing a firearm while being a convicted felon and has at least three previous convictions for violent felonies. 18 U.S.C. § 924(e)(1) (Supp. V 1987). Cornelius claims that the guilty plea entered in one of those prior convictions was not intelligent and voluntary as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and therefore is constitutionally infirm. Consequently, Cornelius claims that the district court erred in not considering whether that conviction is capable of sustaining his enhanced sentence as an armed career criminal.

The government argues that Cornelius may not collaterally attack the constitutional validity of his prior conviction at his sentencing enhancement hearing under § 924(e). They argue that even though the enhancement under § 924(e) is statutory, any collateral attack is barred by Application Note 6 of § 4A1.2 of the Guidelines because the actual final sentence is computed under the Guidelines. Note 6 reads in relevant part: “[Sentences resulting from convictions that a defendant shows to have been previously ruled constitutionally invalid are not to be counted.” U.S.S.G. § 4A1.2, Application Note 6 (emphasis added). The government cites United States v. Hewitt, 942 F.2d 1270 (8th Cir.1991), where we decided that Application Note 6 prevented a defendant from collaterally attacking a prior conviction to show that it should not be used to calculate his criminal history score. Id. at 1276.

The government’s reliance on Hewitt is misplaced. That case addressed a sentence imposed solely under the Guidelines. In United States v. Day, 949 F.2d 973 (8th Cir.1991), we held that “[w]hile the imposition of a sentence greater than Section 924(e)’s minimum sentence is governed by the Guidelines, the imposition of the minimum sentence itself is governed by an independent statutory arrangement.” Id. at 980-81 (citations omitted). It is the application of this “independent statutory arrangement” that Cornelius is challenging, not the imposition of the Guidelines sentencing range after the applicability of the statute has already been decided.

We have clearly held that under § 924(e) a defendant has the “opportunity to demonstrate that one or more of the felonies proposed as a basis for his receipt of an enhanced sentence are incapable of that purpose.” Day, 949 F.2d at 981. Therefore, we remand this issue to the district court for a determination of whether Cornelius is an armed career criminal within the meaning of the statute.

[*707] III.

For the reasons stated above, we affirm in part, reverse in part and remand the case to the district court for resentencing consistent with this opinion.

1

. Section 4B1.1 requires, inter alia, that the instant offense of which the defendant is convicted must be a crime of violence. The term "crime of violence” is defined in § 4B1.2. In Cornelius’ prior appeal, we held that unlawful possession of a firearm by a felon is a crime of violence within the meaning of the Guidelines. After Cornelius’ sentencing and after our opinion was issued, the Sentencing Commission amended the commentary to § 4B1.2. Effective November 1, 1991, Application Note 2 reads, in relevant part, "The term ‘crime of violence' does not include the offense of unlawful possession of a firearm by a felon.” U.S.S.G. § 4B1.2, Application Note 2. This amendment was not in effect at the time of either Cornelius’ sentencing or his first appeal, and we will not apply it retroactively in this case. See United States v. Evans, 966 F.2d 398, 402 n. 3 (8th Cir.1992); United States v. Dortch, 923 F.2d 629, 632 n. 2 (8th Cir.) ("Because appellant was sentenced before the effective date of the amendment, the 1990 amendment does not apply.’’), reh’g denied, No. 89-2145 (8th Cir. June 5, 1991).

2

. Cornelius also argues that the district court's alternative finding that the cases are not sufficiently “related" under the Guidelines is incorrect. Because we hold that the district court was not free to consider whether Cornelius was a career offender under U.S.S.G. § 4B1.1 on remand, we do not reach the issue of whether the cases are "related." The proper procedure for Cornelius to follow to challenge the basis for his § 4B1.1 enhancement would be to file a collateral challenge under 28 U.S.C. § 2255.