United States of America v. Jose Luis Jaime Perez, a/k/a Pri, a/k/a Canello, a/k/a Jose Luis Jaimes Perez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6303
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE LUIS JAIME PEREZ, a/k/a Pri, a/k/a Canello, a/k/a Jose
Luis Jaimes Perez,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, Chief
District Judge. (5:07-cr-00063-GEC-JGW-18)
Submitted: August 16, 2012 Decided: August 24, 2012
Before GREGORY, DAVIS, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul G. Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke,
Virginia, for Appellant. Donald Ray Wolthuis, Assistant United
States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIUM:
Jose Luis Jaime Perez was convicted, following a jury
trial, of conspiracy to manufacture, distribute, and possess
with intent to distribute more than five kilograms of cocaine,
in violation of 21 U.S.C. § 846 (2006). The district court
initially sentenced Perez to 262 months’ imprisonment. Perez
appealed his sentence and the district court’s denial of his
motion for new counsel, which he filed after his conviction but
before sentencing. We affirmed the denial of the motion for new
counsel, but reversed Perez’s sentence because the district
court failed to make the necessary findings to support a two-
level obstruction of justice enhancement under U.S. Sentencing
Guidelines Manual § 3C1.1 (2007), and remanded for resentencing.
United States v. Perez, 661 F.3d 189, 193-94 (4th Cir. 2011).
At resentencing, the district court once again
enhanced Perez’s base offense level of thirty-six by two levels,
pursuant to USSG § 3C1.1, for obstruction of justice, giving
Perez an adjusted offense level of thirty-four. However, based
on Perez’s rehabilitation efforts since his first sentencing
hearing, the court then varied downward by four offense levels,
finding that Perez’s need for rehabilitation had decreased, he
had accepted responsibility for his actions, and the original
262-month sentence was no longer necessary to deter Perez from
committing further crimes. With a total offense level of

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thirty-four and placement in criminal history category II,
Perez’s advisory Guidelines range was 168 to 210 months’
imprisonment. USSG ch. 5, pt. A (sentencing table). The court
sentenced him to 168 months in prison, the bottom of the
Guidelines range.
Perez timely appealed. Counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), finding
no meritorious grounds for appeal, but challenging the
reasonableness of Perez’s sentence. Perez filed a pro se
supplemental brief challenging both his conviction and his
sentence. For the reasons that follow, we affirm.
Perez’s pro se challenges to his conviction are barred
by the mandate rule. “The mandate rule is a specific
application of the law of the case doctrine” to cases that have
been remanded on appeal. Volvo Trademark Holding Aktiebolaget
v. Clark Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007). By
limiting subsequent proceedings to only those issues falling
within the scope of the appellate court’s mandate, the rule
ensures that litigants in remanded cases get only one bite at
the apple, foreclosing “relitigation of issues expressly or
impliedly decided by the appellate court.” United States v.
Bell, 5 F.3d 64, 66 (4th Cir. 1993); see Pepper v. United
States, 131 S. Ct. 1229, 1250-51 (2011) (recognizing that a
limited appellate mandate may restrict a resentencing court’s

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discretion to depart from the district court’s original
sentencing determinations).
On appeal, a party waives “any issue that could have
been but was not raised” before the appellate court. Doe v.
Chao, 511 F.3d 461, 465 (4th Cir. 2007). Because it has not
been tendered to the appellate court for decision, an issue that
has been waived on an initial appeal is “not remanded” to the
district court even if other issues in the case are returned to
the court below. Id. Given that a waived argument is not
within the scope of the appellate mandate, the mandate rule thus
holds that, “where an argument could have been raised on an
initial appeal, it is inappropriate to consider that argument on
a second appeal following remand.” Omni Outdoor Adver., Inc. v.
Columbia Outdoor Adver., Inc., 974 F.2d 502, 505 (4th Cir. 1992)
(internal quotation marks omitted). See also Volvo, 510 F.3d at
481 (“[U]nder the mandate rule[,] a remand proceeding is not the
occasion for raising new arguments or legal theories.”); United
States v. Susi, 674 F.3d 278, 285 (4th Cir. 2012) (“[W]hile
Pepper allows district courts the flexibility to address any
component of the sentencing decision that it must in order to
‘effectuate its sentencing intent,’ that decision does not
fundamentally alter the rule of waiver.”). Perez’s failure to
challenge his conviction in his first appeal precludes his

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efforts to challenge it before this Court now. Omni, 974 F.2d
at 505.
Turning to his sentence, in both the Anders brief and
his pro se supplemental brief, Perez challenges the two-level
enhancement for obstruction of justice. We review a sentence
for reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). In assessing
whether a sentencing court properly applied the Guidelines, the
district court’s factual findings are reviewed for clear error
and its legal conclusions are reviewed de novo. United States
v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008). We will “find
clear error only if, on the entire evidence, [we are] left with
the definite and firm conviction that a mistake has been
committed.” United States v. Manigan, 592 F.3d 621, 631 (4th
Cir. 2010) (internal quotation marks and citation omitted;
alteration in original).
Perez argues that the district court exceeded the
scope of this Court’s mandate when it reimposed the two-level
enhancement for obstruction of justice. However, our previous
opinion remanded for resentencing without limiting the district
court to specific issues. Such a “general remand” for
resentencing, which does not place any limitations on the
district court, in effect orders a de novo resentencing.
Pepper, 131 S. Ct. at 1250; United States v. Fields, 552 F.3d

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401, 404 (4th Cir. 2009). Thus, the district court was free to
reconsider whether the obstruction of justice enhancement was
warranted.
Moreover, the district court properly applied the
obstruction of justice enhancement. In order to apply an
obstruction of justice enhancement based on perjured testimony,
a district court must make findings that clearly establish that
the defendant willfully, with the intent to deceive, falsely
testified about a material matter. Perez, 661 F.3d at 192-93.
On remand, the district court found that Perez
willfully obstructed justice both through his false testimony at
trial and through his conduct at the time of his arrest.
Specifically, the court found that Perez falsely testified when
he denied under oath that he was involved in cocaine
trafficking, which directly contradicted Government witness
testimony which the jury found more credible. Second, the court
found that Perez’s false testimony concerned a material matter,
namely his guilt or innocence. Finally, the court found that
Perez acted willfully with the intent to deceive not only by
testifying in direct contradiction to witnesses whose testimony
the jury found more credible, but also by his behavior during
his arrest when he denied any wrongdoing, refused to identify
himself to the police or provide his home address, and when
officers entered his home, shouted at a woman in the house not

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to answer the officers’ questions or reveal his name. We
conclude that the district court’s findings are not clearly
erroneous and clearly establish the three elements necessary to
support a two-level enhancement for obstruction of justice.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm. This Court requires that counsel
inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move
in this Court for leave to withdraw from representation.
Counsel’s motion must state that a copy of the motion was served
on his client. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED

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