United States of America v. Hiachor Kpodi

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 11, 2018 Decided April 27, 2018
No. 17-3008
UNITED S TATES OF A MERICA,
APPELLEE
v.
H IACHOR KPODI,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cr-00214-1)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender.
Daniel J. Lenerz, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jessie K. Liu,
U.S. Attorney, and Elizabeth Trosman and Nicholas P.
Coleman, Assistant U.S. Attorneys.
Before: HENDERSON and TATEL, Circuit Judges, and
EDWARDS , Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS .

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EDWARDS , Senior Circuit Judge: In 2014, a jury convicted
Hiachor Kpodi of possessing with intent to distribute twenty-
eight grams or more of cocaine base and possession of a firearm
by a felon. The District Court sentenced him to 151 months of
imprisonment. This court vacated Kpodi’s initial sentence
because the District Court had relied on an erroneous inference
based on evidence that had been excluded from trial. United
States v. Kpodi (“Kpodi I”), 824 F.3d 122 (D.C. Cir. 2016). The
case was remanded for resentencing.
At one point during Kpodi’s resentencing hearing, the
District Court and prosecution appeared to agree that, contrary
to the judgment of this court, the District Court had not erred
during the first sentencing. The trial judge then went on to
reevaluate the applicable sentencing factors and again imposed
a sentence of 151 months.
Kpodi now appeals from his resentencing. He argues that
the hearing before the District Court was tainted because,
during the course of resentencing, the trial judge expressed
some doubt about the judgment in Kpodi I and Government
counsel suggested that the District Court should disregard this
court’s decision. In light of this record, Kpodi argues that the
District Court’s resentencing decision is no better than the
sentencing decision that was reversed by Kpodi I. In Kpodi’s
view, the judgment of the District Court ignores the mandate
of Kpodi I and violates the law of the case and, therefore, must
be reversed. We disagree. Although Government counsel
showed little regard for our decision in Kpodi I, the record
indicates that the trial judge fully complied with this court’s
judgment without being influenced by any improper
considerations. And the District Court’s resentencing decision
was eminently reasonable. We therefore affirm.

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I. B ACKGROUND
A. Initial Trial and Sentencing
Hiachor Kpodi was arrested on May 9, 2013. The specific
circumstances of his arrest and jury trial are detailed in Kpodi I
and need not be repeated here. For our purposes, it is sufficient
to note that Kpodi was ultimately convicted of possession with
intent to distribute twenty-eight grams or more of cocaine base
in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B)(iii),
and of possession of a firearm by a felon in violation of 18
U.S.C. § 922(g)(1).
The Government moved to introduce evidence pertaining
to an incident that occurred on April 4, 2013. In Kpodi I, we
described the incident as follows:
On the evening of April 4, Kpodi’s neighbors
reported gun shots near Kpodi’s house. . . .
[C]rime-scene investigators recovered twenty-
nine shell casings near Kpodi’s residence,
fourteen of which were from a .45 caliber
handgun—the same caliber as the handgun
subsequently seized in Kpodi’s residence on
May 9. On April 24, the police interviewed two
witnesses who saw Kpodi fleeing to his
residence and ducking behind vehicles while
the shootings occurred.
824 F.3d at 124 (footnote omitted). The District Court excluded
the April 4 shooting evidence from trial. It determined that the
evidence did not establish whether Kpodi had played any active
role in the shootings. As a result, the court concluded that the
evidence’s prejudicial effect substantially outweighed its
probative value.

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Kpodi’s initial sentencing took place on June 3, 2014. The
Presentence Report (“PSR”) included a description of the
April 4 shooting incident. Kpodi objected to the District
Court’s consideration of evidence related to the shooting for
sentencing purposes. He argued it was no more relevant for
sentencing than it had been during trial. The court concluded,
however, that the evidence’s inclusion in the PSR was
permissible as a “description of the circumstances that led to
the investigation and ultimately to the execution of the search
warrant at Mr. Kpodi’s home,” which in turn led to his arrest
and conviction. Id. at 125.
When the District Court discussed the 18 U.S.C. § 3553
sentencing factors, it addressed the April 4 shooting in the
context of the other crimes evidence. It noted that, “[w]hile we
don’t know the precise reason for the gunfight or the
defendant’s precise role in the gunfight, what is clear from the
defendant’s involvement and participation in the gunfight
combined with the loaded guns found in his possession during
[an April 27, 2013] car-stop in the same month as the street
gunfight and in his D.C. home where he stored his drugs is that
he was clearly prepared to use a gun as part of his illegal drug
business.” Id. at 125–26. The trial judge stated further that,
“[t]o me, this is a very important circumstance that the
association of the defendant’s drug conviction with guns . . . is
a very important consideration in the Court’s determination of
which sentence recommendation is appropriate in this case.”
Id. at 126.
Based on the PSR, the District Court imposed a two-level
enhancement for possession of a dangerous weapon in
furtherance of Kpodi’s drug trafficking. It ultimately sentenced
him to concurrent terms of 151 months’ imprisonment on the

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drug conviction and 120 months on the firearm conviction, at
the bottom of the guidelines range.
B. The Court of Appeals Decision in Kpodi I
Kpodi timely appealed his sentence to this court, arguing
that the District Court had abused its discretion by considering
the April 4 shooting evidence when it sentenced him. Id. at 126.
We agreed.
The court in Kpodi I found that the District Court had relied
on the April 4 incident as evidence showing that Kpodi “was
clearly prepared to use a gun as part of his illegal drug
business.” Id. at 127. “[I]n view of the vagueness of [that]
evidence,” the court determined that the District Court’s
“inference that Kpodi either fired a weapon, was holding a gun
while fleeing or even participated in the April 4 shooting was
clearly erroneous.” Id. at 128. Reliance on that clearly
erroneous inference in support of a conclusion that Kpodi had
a propensity to use firearms in connection with his drug
dealings, the court held, constituted an abuse of discretion. Id.
The decision in Kpodi I went on to explain that, although
other evidence “may ultimately support the district court’s
conclusion that Kpodi had a propensity to use firearms in
connection with drug dealings, the inference that the April 4
evidence demonstrated that propensity was clearly erroneous.”
Id. It further held that, despite the April 4 incident being only
“one of multiple incidents that led the court to conclude that
Kpodi was likely to use guns in furtherance of his drug
transactions,” the District Court’s erroneous consideration of
that evidence was not harmless because the court had “called
the April 4 incident ‘chilling,’ referenced it specifically in
discussing the harm to ‘innocent bystanders, including
children,’ and explained that it was a ‘very important

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circumstance’ and ‘very important consideration’ in
determining ‘which sentence recommendation is appropriate.’”
Id. at 130 (quoting Initial Sentencing Transcript, at 47–48).
In light of these considerations, we vacated Kpodi’s
sentence and remanded the case to the District Court for
resentencing. Id.
C. Resentencing Following Remand
On remand, the Government proposed that the District
Court impose the same sentence. See Gov’t’s Memo in Aid of
Resentencing, reprinted in Appendix (“App.”) 24, 28. The
Government asserted that “the jury’s conviction of the
defendant of the possession of the weapon . . . , in conjunction
with the circumstances of defendant’s possession of weapons
and narcotics in both Maryland and in [D.C.], allow the Court
to make a finding for sentencing purposes that the weapon . . .
was possessed in furtherance of his drug trafficking.” Id. at 31.
At the resentencing hearing, Government counsel and the
District Court judge engaged in the following colloquy:
GOV’T COUNSEL: . . . [I]t was not my
impression, based on the last sentencing, that
the Court inappropriately considered anything
that it should not have considered – –
THE COURT: The record was clearly not
sufficiently clear.
GOV’T COUNSEL: Perhaps not according to
the Circuit. However, my point is: I believe the
Court should do what it did the last time. I don’t
think anything happened incorrectly the last

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time and that the same analysis therefore, in
essence, applies this time, aside from any lack
of clarity, if there was any on that one particular
point.
Resentencing Transcript at 17–18. Government counsel also
said: “My understanding of the D.C. Circuit’s opinion is that
the Court shouldn’t speculate. Frankly, I don’t think the Court
speculated last time.” Id. at 10.
Despite being egged on by Government counsel, the
District Court finally made it clear that it was “not relying on
any particular role this defendant may or may not have had in
connection with this shooting incident . . . in calculating an
appropriate sentence in this case.” Id. at 12–13. The trial judge
then said, “and I did not before.” Id. The District Court went
on to impose the same sentence that it had imposed at the initial
sentencing. After considering the evidence before it, the trial
judge concluded that Kpodi had a propensity to use firearms in
connection with his drug dealing activity. Accordingly, it
determined that a guidelines-compliant sentence of 151 months
incarceration was appropriate. Id. at 49.
Kpodi now appeals his sentence for a second time. He
argues that the District Court’s suggestion that it had not
previously considered the unreliable shooting evidence
deprived him of the resentencing he was entitled to under this
court’s Kpodi I decision. According to Kpodi, this error
violated this court’s mandate in Kpodi I and the law of the case.
He further claims that the error caused the District Court to
impose an unduly harsh sentence and was therefore prejudicial.
The Government defends the new sentence as valid.

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II. ANALYSIS
A. Standard of Review
Once again, we review Kpodi’s challenge to his sentence
for abuse of discretion. Kpodi I, 824 F.3d at 126. We first
“ensure that the district court committed no significant
procedural error.” Gall v. United States, 552 U.S. 38, 51
(2007). At this step, we review the court’s legal conclusions de
novo and its factual findings for clear error. United States v.
Brown, 857 F.3d 403, 405 (D.C. Cir. 2017). A district court
commits legal error and therefore abuses its discretion when it
fails to abide by the law-of-the-case doctrine or the mandate
rule. See United States v. Singleton, 759 F.2d 176, 180 (D.C.
Cir. 1985). We thus review the District Court’s application of
both doctrines de novo. See United States v. Alston, 722 F.3d
603, 606 (4th Cir. 2013) (mandate rule); Field v. Mans, 157
F.3d 35, 40 (1st Cir. 1998) (law-of-the-case doctrine).
If we find that the District Court’s sentencing decision was
procedurally sound, we “then consider the substantive
reasonableness of the sentence imposed . . . tak[ing] into
account the totality of the circumstances.” Gall, 552 U.S. at 51.
B. The Mandate Rule and the Law-of-the-Case Doctrine
The mandate rule embodies the simple principle that “an
inferior court has no power or authority to deviate from the
mandate issued by an appellate court.” Briggs v. Pa. R.R. Co.,
334 U.S. 304, 306 (1948). It is “a more powerful version of the
law-of-the-case doctrine, which prevents courts from
reconsidering issues that have already been decided in the same
case.” Indep. Petrol. Ass’n of Am. v. Babbitt, 235 F.3d 588, 597
(D.C. Cir. 2001) (internal quotation marks omitted).

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The law-of-the-case doctrine “is a rule of practice whereby
‘courts generally . . . refuse to reopen what has been decided.’”
Singleton, 759 F.2d at 178 (quoting Messenger v. Anderson,
225 U.S. 436, 444 (1912)). “It is predicated on the premise that
. . . it would be impossible for an appellate court to perform its
duties satisfactorily and efficiently and expeditiously if a
question, once considered and decided by it[,] were to be
litigated anew in the same case upon any and every subsequent
appeal.” Id. (quoting White v. Murtha, 377 F.2d 428, 431 (5th
Cir. 1981)).
Kpodi asserts that the District Court’s statement that it “did
not [rely on the shooting incident] before” violated both this
court’s mandate in Kpodi I and the law of the case. In Kpodi’s
view, this statement by the District Court caused it to “fail[] to
re-assess the § 3553 factors when it re-sentenced appellant.”
Appellant’s Br. 7. In other words, Kpodi argues that because
the District Court did not believe that it had erred in
considering the April 4 shooting during his initial sentencing,
the court erred in failing to “subtract that incident” from its
calculus during resentencing. Id. at 11.
The Government, for its part, contends that the District
Court merely “express[ed] its disagreement” with the Court of
Appeals’ finding that it had relied on the shootout, but did not
improperly revisit that determination or fail to carry out the
resentencing mandate that this court’s opinion imposed. Gov’t
Br. 16–17.
Appellant is correct in arguing that, under the law-of-the-
case doctrine and mandate rule, a district court commits legal
error by failing to reconsider a sentence on the ground that it
disagrees with the court of appeals’ reading of its prior
sentencing transcript. See Singleton, 759 F.2d at 180; Briggs,
334 U.S. at 306. In this case, however, the District Court clearly

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followed this court’s instruction to resentence the defendant
without consideration of the improper inference from the
shooting evidence. The District Court initially disagreed with
Kpodi I’s finding that the court had considered the April 4,
2013 gunfight when it first sentenced Kpodi. However, the
judge ultimately made it clear that the decision to resentence
Kpodi to the same sentence was reached without any reliance
on the April 4 shooting incident. Indeed, the court reiterated
that point at least three times.
Furthermore, the District Court explained the events and
evidence that it did rely on in support of its finding that Kpodi
had a propensity to use dangerous weapons in connection with
his drug crimes. Resentencing Transcript at 39–40 (“[T]he
April 27 traffic stop, the October 30th search, combined with
the other evidence in his record of arrest, where he was also
found in possession of a gun, all does show that he has a
propensity to use firearms.”). That evidence did not include the
April 4 event, and it was more than sufficient to support the
court’s conclusion. Id.
For example, the court described the several occasions on
which Kpodi was arrested or charged with criminal activity and
noted that “it seems like every time he had been arrested, even
from 2010 through 2013 . . . , he always had a loaded gun on
him.” Id. at 39. The court also noted that,
[T]he conclusion about the defendant’s
propensity to possess illegally loaded guns,
including as part of his drug business, is
supported by his drug and gun conviction in
1997, the possession of a loaded gun in his car
twice when he was arrested in 2010 and April
2013, and his possession of drugs and a loaded
gun in May 2013 without any need or any

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reliance whatsoever on whatever his role was in
the April 4, 2013 shootout in the residential
neighborhood where he then lived, and without
drawing any inference whatsoever about
whatever his role might have been in that
shootout.
Id. at 40.
In addition, the District Court explained:
The D.C. Circuit said, in its remand decision,
quote: “The evidence from the April 27 traffic
stop and October 30 search may ultimately
support the district court’s conclusion that
Kpodi had a propensity to use firearms in
connection with his drug dealings,” period. And
it does.
Id. at 39 (quoting Kpodi I, 824 F.3d at 128).
The District Court plainly accepted this court’s conclusion
that any consideration of the shooting incident or any inference
about Kpodi’s role therein was inappropriate and it heeded this
court’s mandate to resentence Kpodi without considering that
evidence. The District Court engaged in a careful and
thoughtful analysis of the remaining evidence and the
sentencing factors, and it reached a reasonable conclusion. The
sentence the court imposed was procedurally and substantively
sound, and we will not disturb it.

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C. Inappropriate Statements By the Prosecutor
Kpodi’s frustration with the proceedings below is
understandable. The most concerning thing about the transcript
of the resentencing hearing is Government counsel’s
suggestion to the District Court that it should go so far as to
disregard the Court of Appeals’ decision. See Resentencing
Transcript at 17–18.
Parties are, of course, free to disagree with a court’s
findings. But as appellate counsel for the Government agreed,
it is highly improper for the Government to urge disregard of
the Court of Appeals’ decision before the District Court on
remand. See Oral Arg. Recording at 11:52–12:00, 12:36–
12:50, 13:40–13:55. As the Supreme Court has explained, the
United States Attorney “is in a peculiar and very definite sense
the servant of the law . . . [and it] is as much his duty to refrain
from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about
a just one.” Berger v. United States, 295 U.S. 78, 88 (1935).
That duty extends to sentencing. See, e.g., United States v.
Pavloyianis, 996 F.2d 1467, 1475 (2d Cir. 1993) (ascribing “a
higher standard of professional and ethical responsibility” to
government attorneys); Gray Panthers v. Schweiker, 716 F.2d
23, 33 (D.C. Cir. 1983) (“There is, indeed, much to suggest that
government counsel have a higher duty to uphold because their
client is not only the agency they represent but also the public
at large.”).
Statements like those Government counsel made in this
case have significant consequences for the public’s perception
of judicial proceedings. And activity that threatens the
perception of fairness in those proceedings undermines faith in
our system of justice. See Williams-Yulee v. Florida Bar, 135
S. Ct. 1656, 1666 (2015); Caperton v. A.T. Massey Coal Co.,

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Inc., 556 U.S. 868, 889 (2009); Offutt v. United States, 348 U.S.
11, 14 (1954) (Frankfurter, J.) (“[J]ustice must satisfy the
appearance of justice.”). Those consequences are heightened
when a defendant’s liberty is at stake. Cf. Young v. United
States, 481 U.S. 787, 810 (1987) (opinion of Brennan, J.); In re
Winship, 397 U.S. 358, 363–64 (1970). Consider Kpodi’s
perspective: He believed his initial sentence was invalid. He
appealed it. He convinced this court he was right. But at his
resentencing, Government counsel attempted to contradict the
plain terms of our judgment in Kpodi I. A defendant who hears
what the prosecutor had to say might justifiably wonder if he
has truly had his day in court. However, as was her duty, the
District Court judge ultimately ignored Government counsel’s
impermissible overtures and resentenced Kpodi properly under
the law.
III. CONCLUSION
For the reasons set forth above, we affirm the judgment of
the District Court.

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