United States Court of Appeals, District of Columbia Circuit
January 11, 2018
from the United States District Court for the District of
Columbia (No. 1:13-cr-00214-1)
G. Roland, Assistant Federal Public Defender, argued the
cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender.
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.
Edwards, Senior Circuit Judge.
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.
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.
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
Initial Trial and Sentencing
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. §
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
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.
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