At page 718 Waiver of claims in subsequent appeals after remand32 citing cases“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.”
- Branigh v. State / Branigh v. State, No. 45397/49478 (Idaho Ct. App. Dec. 8, 2023).unpublished([W]hen a party fails to seek review of a district court’s final order, it is barred from reasserting that issue in any subsequent appeals occurring in that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.)
- Winters v. United States, No. 5:16-cv-05052 (D.S.D. Nov. 18, 2019).(While the district court may: entertain any issues it feels are relevant to the overall sentencing decision (following a general □ remand), this does not give the parties license to re-assert issues that they should ha…)
- United States v. Franks, 203 F. App'x 698 (6th Cir. 2006).unpublished (when a party fails to seek review of a district court’s final order, it is barred from reasserting that issue in any subsequent appeals occurring in that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)
- United States v. Michael Benanti, No. 24-5225 (6th Cir. July 29, 2026).unpublished(concluding that the government waived its firearm-enhancement argument by not raising it in the first appeal before resentencing on remand)
- United States v. Radu Miclaus, 177 F.4th 740 (6th Cir. 2026).published And it rejected Lanier head-on as “foreclosed by precedent and dead on arrival” because it “contradicts—and ignores—the entire body of Sixth Circuit precedent about de novo sentencing” and “misreads and misrepresents” United States v. McKi…
- United States v. Orlando Johnson, No. 21-1519 (6th Cir. Aug. 21, 2023).published United States v. McKinley, 227 F.3d 716, 718 (6th Cir. 2000).
- United States v. Corey Lamont Lanier, No. 21-5619, 2023 WL 4963190 (6th Cir. Aug. 3, 2023).unpublished But “when a party fails to seek review of a district court’s final order, it is barred from reasserting that issue in any subsequent appeals occurring in that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.” United States v. McKinley, 227 F.3d 716, 718 (6th Cir. 2000).
- United States v. Isaac Knight, No. 19-3360 (6th Cir. Jan. 6, 2020).unpublishedWe have applied this doctrine to sentencing issues on remand for resentencing: “While the district court may entertain any issues it feels are relevant to the overall sentencing decision (following a general remand), this does not give the…
- United States v. Cory Traxler, 517 F. App'x 472 (6th Cir. 2013).unpublished (holding that the government waived its argument for a sentence enhancement where the government failed to pursue this claim during the earlier appeal of the case)
- United States v. Antonio Wynn, 485 F. App'x 766 (6th Cir. 2012).unpublished Under the “general rule that 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,” this court has found that a party waived a claim…
Show 19 more citing cases
- United States v. McFalls, 675 F.3d 599 (6th Cir. 2012).publishedUnited States v. McKinley, 227 F.3d 716, 718 (6th Cir. 2000).
- United States v. Ernesto Franco, 318 F. App'x 411 (6th Cir. 2009).unpublished But when a defendant seeks appellate review of an issue underlying a district court’s decision, he will not be permanently “barred from reasserting that issue in any subsequent appeals occurring in that case.” See United States *415 v. McK…
- United States v. Simpson, 546 F.3d 394 (6th Cir. 2008).publishedUnited States v. McKinley, 227 F.3d 716, 718 (6th Cir.2000).
- United States v. Triana, 295 F. App'x 1 (6th Cir. 2008).unpublished(government forfeited an argument available, but unpursued, in the first appeal)
- United States v. Sedore, 512 F.3d 819 (6th Cir. 2008).published However, “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.” United States v. McKinley, 227 F.3d 716, 718 (6th Cir.2000).
- United States v. Ahmed Brika, 487 F.3d 450 (6th Cir. 2007).published Defendant may not reassert issues that he raised or should have raised in his earlier appeal.”) (citing United States v. McKinley, 227 F.3d 716, 718 (6th Cir. 2000)).
- United States v. Perry, 228 F. App'x 557 (6th Cir. 2007).unpublishedTherefore, he has waived this claim. “[W]hen a party fails to seek review of a district court’s final order, it is barred from reasserting that issue in any subsequent appeals.” United States v. McKinley, 227 F.3d 716, 718 (6th Cir.2000).
- United States v. Procter, 215 F. App'x 409 (6th Cir. 2007).unpublished United States v. McKinley, 227 F.3d 716, 719 (6th Cir.2000) (holding defendant may not contest drug amount when upheld in prior appeal).
- United States v. Sandlin, 96 F. App'x 388 (6th Cir. 2004).unpublishedUnited States v. McKinley, 227 F.3d 716, 718 (6th Cir.2000) (citing cases).
- United States v. Chilingirian, 95 F. App'x 782 (6th Cir. 2004).unpublishedOur circuit’s case law has identified “the general rule that 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.” United States v.…
- United States v. Louis Amir, 644 F. App'x 398 (6th Cir. 2016).unpublished(holding that a party waives a claim when it fails to seek review on initial appeal)
- United States v. Travis King, 443 F. App'x 995 (6th Cir. 2011).unpublishedSee United States v. McKinley, 227 F.3d 716, 718 (6th Cir.2000). 2 .
- United States v. Parker, 341 F. App'x 122 (6th Cir. 2009).unpublished(when a party fails to raise an argument that was “available to the [party] during the first appeal[,]” the party is “barred from reasserting that issue in any subsequent appeals occurring in that case)
- United States v. Mitchell, 232 F. App'x 513 (6th Cir. 2007).unpublished(explaining that “when a party fails to seek review of a district court’s final order, it is barred from reasserting that issue in any subsequent appeal[])
- United States v. Alcantara, 116 F. App'x 693 (6th Cir. 2004).unpublished(noting that government waived efforts to raise defendant’s total offense level for possession of firearm during a drug crime when it failed to raise the issue during an earlier appeal, stating that “[wjhile the district…)
- Geraldine Burley v. Jeffery Gagacki, 834 F.3d 606 (6th Cir. 2016).publishedThus, “[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 ‘[i]t would be absurd that a party who has chosen not to argue .a poi…
- Melvin Kindle v. City of Jeffersontown, KY, 589 F. App'x 747 (6th Cir. 2014).unpublished([T]he general rule [is] that 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.)
- United States v. Juan Lopez, 453 F. App'x 602 (6th Cir. 2011).unpublished(holding government waived argument for firearm enhancement by not raising it during the first appeal)
- United States v. Gibbs, 626 F.3d 344 (6th Cir. 2010).published(holding government waived argument for additional firearm enhancement by not raising it during the first appeal)
At page 719 Waiver doctrine preventing perpetual litigation in appeals5 citing cases“the waiver doctrine exists to forestall this kind of perpetual litigation by notifying parties that they will forfeit their claims if they fail to seek review in the first appeal.”
- Rudd v. Norton Shores, City of, No. 1:18-cv-00124 (W.D. Mich. Apr. 22, 2021).“This doctrine exists for good reason—it discourages ‘perpetual litigation’ and promotes finality in proceedings by requiring that parties seek review of a claim in the first appeal.” Burley v. Gagacki, 834 F.3d 606, 619 (6th Cir. 2016) (q…
- Abdulkadir Mohamed v. William P. Barr, 797 F. App'x 1019 (6th Cir. 2020).unpublished“This doctrine exists for good reason—it discourages ‘perpetual litigation’ and promotes finality in proceedings by requiring that parties seek review of a claim in the first appeal.” Burley v. Gagacki, 834 F.3d 606, 619 (6th Cir. 2016) (q…
- United States v. Samuel Mullet, Sr., 822 F.3d 842 (6th Cir. 2016).publishedThis approach is “well-settled,” United States v. Henry, 472 F.3d 910, 913 (D.C.Cir.2007) (per curiam), prevents “perpetual litigation,” United States v. McKinley, 227 F.3d 716, 719 (6th Cir.2000), and “encourage[s] compliance with fair an…
- United States v. Antonio Wynn, 485 F. App'x 766 (6th Cir. 2012).unpublished Under the “general rule that 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,” this court has found that a party waived a claim…
- United States v. Procter, 215 F. App'x 409 (6th Cir. 2007).unpublished (holding defendant may not contest drug amount when upheld in prior appeal)
At page 735 cited at this page1 citing case
- United States v. Radu Miclaus, 177 F.4th 740 (6th Cir. 2026).published And it rejected Lanier head-on as “foreclosed by precedent and dead on arrival” because it “contradicts—and ignores—the entire body of Sixth Circuit precedent about de novo sentencing” and “misreads and misrepresents” United States v. McKi…
v.
William A. McKINLEY, Defendant-Appellant/Cross-Appellee
OPINION
MERRITT, Circuit Judge.Defendant William McKinley appeals the district court’s order sentencing him to 170 months of imprisonment, imposed following remand from this court’s judgment in United States v. Walker, 160 F.3d 1078 (6th Cir.1998), cert. denied sub. nom. McKinley v. U.S., 526 U.S. 1056, 119 S.Ct. 1368, 143 L.Ed.2d 528 (1999). Defendant claims that the district court improperly calculated the amount of cocaine and cocaine base (“crack”) for which he should be held responsible. The government cross-appeals the same sentencing order, arguing that the district court should have enhanced the defendant’s sentencing level by two points, pursuant to U.S.S.G. § 2D1.1(b)(1). We affirm the district court’s determination of the amount of cocaine and crack attributable to the defendant, as we did in our earlier decision in Walker. We also reject the government’s argument for a sentence enhancement as having been waived due to the government’s failure to pursue this claim during the earlier appeal of this case in Walker.
I.
In September 1994, defendant William McKinley and three co-defendants were convicted of conspiring to distribute cocaine and crack in the Youngstown, Ohio, area. McKinley was also convicted of possessing crack with intent to distribute and was assigned a total offense level of 38, and sentenced to 260 months of imprisonment. During the original sentencing proceeding, the government urged the district court to apply a two-point enhancement to the defendant’s sentence for possession of firearms during a drug crime, but the district court declined to do so. This court[*718] affirmed McKinley’s convictions in Walker, 160 F.3d at 1096, but vacated his sentence and remanded the case to the district court for resentencing. This order was based on our determination that McKinley did not play a leadership role in the conspiracy to distribute cocaine and crack, and therefore did not meet the requirements for a four-point sentence enhancement as set forth in U.S.S.G. § 3Bl.l(e). In reviewing this sentence, we specifically rejected McKinley’s argument that the district court erred in its determination of the amount of cocaine for which McKinley should be held responsible, as “McKinley [presented] absolutely no basis for reversal on this point.” Walker, 160 F.3d at 1090. As a result, the case was remanded for resen-tencing at a total offense level of 34.
The government chose not to appeal the district court’s decision regarding the sentence enhancement for possession of a firearm during a drug crime. As a result, we did not have notice that this question remained an issue and did not have an opportunity to dispose of this issue as part of the Walker appellate proceeding.
On remand, the parties raised two issues in addition to the “role-in-the-offense” enhancement that formed the basis for the remand order. McKinley reiterated his objection to the district court’s determination of the amount of cocaine and crack for which he was held responsible, but the district court adhered to its earlier determination of this question, which had been upheld by this court. The government in turn re-asserted its claim that the offense level should be increased by two points, to 36, as a result of McKinley’s possession of two firearms. The district court rejected this argument, as it had at McKinley’s original sentencing hearing. We reject both the defendant’s argument on the amount of drugs and the government’s belated firearms argument.
II.
The government urges us to review and reverse the district court’s decision not to raise the defendant’s total offense level for possessing firearms during a drug crime. We find, however, that the government waived this claim when it chose not to seek review of this decision during the original Walker appellate proceeding. Our decision on this issue is in accordance with the general rule that 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. Crick v. Smith, 729 F.2d 1038, 1039-40 (6th Cir.1984), U.S. v. Blanton, 697 F.2d 146, 147-48 (6th Cir.1983). While the district court may entertain any issues it feels are relevant to the overall sentencing decision (following a general remand), Hebeka, 89 F.3d at 284-86 (6th Cir.1996), this does not give the parties license to re-assert issues that they should have raised during an earlier appeal. For example, in Hebe-ka, we allowed the government to seek review of an argument that it been unable to pursue during the initial appeal, but which became logically relevant in light of our decision and accompanying remand instruction. Id. As a result, the government did not “waive” the argument during the initial appeal because it was unable to pursue the claim during the first proceeding. That is not the case here, however, where the firearms enhancement argument was just as available to the government during the first appeal as it is in the current proceeding. As a result, we find that the government has waived this argument and is therefore precluded from asserting it at this later date.
This result is in accordance with the policy arguments behind the waiver doctrine. Had the government raised this issue in the initial Walker proceeding, we could have disposed of it accordingly. Instead, the government seeks review of this issue as this case appears before us for the second time. Were we to accept the government’s invitation to review the case and remand to the district court for further proceedings on the firearms enhancement[*719] issue, we would doubtless see this case for a third time when the losing party appealed the district court’s decision on this issue. The waiver doctrine exists to forestall this kind of perpetual litigation by notifying parties that they will forfeit their claims if they fail to seek review in the first appeal. Here the government failed to appeal the district court’s decision on the sentencing enhancement when the opportunity first presented itself and therefore relinquished its ability to gain review of the issue by this court.
III.
The district court’s decision regarding the amount of cocaine and crack attributable to the defendant is a factual determination and we therefore review it only for “clear error.” 18 U.S.C. § 3742, United States v. Bahhur, 200 F.3d 917, 924 (6th Cir.2000). In our previous examination of this issue, we found no basis for classifying the determination as “clear error,” or even any foundation for McKinley’s argument that the amount was incorrectly determined. Walker, 160 F.3d 1078, 1090 (McKinley’s argument is “factually spurious, as well as legally inconsequential”). In addition, we specifically rejected McKinley’s claim (which also forms the basis of his current appeal) that he was never a member of the “Ready Rock Boys” (the organization which conspired to sell cocaine and crack). Id. In this appeal, McKinley has presented no new arguments regarding the district court’s calculation and accordingly we see no reason to disturb either the district court’s most recent decision or our previous ruling. As a result, we hereby affirm the district court’s judgement concerning the amount of cocaine and cocaine base attributable to McKinley.
For the foregoing reasons, we hold that the district court did not commit clear error in calculating the amount of cocaine and cocaine base attributable to the defendant and that the government waived its appellate rights on the sentence enhancement issue by failing to seek review at the earliest opportunity. The district court’s decision is hereby affirmed.