United States v. Kpodi

          Argued January 11, 2018

          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 Attorneys General.

          Before: Henderson and Tatel, Circuit Judges, and Edwards, Senior Circuit Judge.

          OPINION

          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.

         I. Background

         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.

         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 ...