UNITED STATES of America, Plaintiff-Appellee, v. Eugene Davis WASHINGTON, Defendant-Appellant

Opinion by Judge LEAVY; Dissent by Judge FLETCHER.

We are asked in this case to determine the scope of our remand for resentencing. The defendant, Eugene Davis Washington, claims that the district court exceeded the scope of the remand by departing upwards. We affirm the district court’s sentence.

BACKGROUND

Washington’s first trial on drug charges ended in a hung jury. He was tried a second time and again the jury deadlocked. Washington then plead guilty to drug and bank fraud charges and was sentenced to 60 months in prison. In the course of a related investigation, the government discovered that Washington had bribed a juror in his first trial. He was then convicted of conspiracy to obstruct justice, obstruction of justice and bribery of a juror. On appeal, we affirmed his conviction, vacated his 144 month sentence, and remanded for resentencing. United States v. Washington, 66 F.3d 1101 (9th Cir.1995).

We held that the district court correctly determined that Washington’s offense level should be computed under Section 2J1.2 of the Sentencing Guidelines, which prescribes the offense level for “Obstruction of Justice.”1 We held, however, that the district court erred in applying Section 2J1.2(c)(l)’s cross-reference to Section 2X3.1 (“Accessory After the Fact”). Application of the cross-reference resulted in a higher offense level than Washington would have received under the specific offense characteristics of Section 2J1.2(b).2 Under the version of the Guidelines in effect when Washington committed his crimes, the cross-reference was inapplicable. Prior to his sentencing, the commentary was amended to permit application of the cross-reference to a defendant who was not an accessory after the fact. We held that this was a substantive rather than a clarifying change; therefore, the cross-reference could not apply to Washington. 66 F.3d at 1104. We concluded:

We therefore vacate Washington’s sentence and remand for the limited purpose of recalculating his base offense level under section 2J1.2, without applying the cross-reference to section 2X3.1, and resentencing him accordingly.

Id.

The district court resentenced Washington on June 24, 1996. The court computed the base offense level under Section 2J1.2 (“Obstruction of Justice”), which has a base offense level of 12, without application of the cross-reference. The district court then adjusted the offense level to 19 as follows: it added a three-level increase under Section 2J1.2(b)(2) for substantial interference with the administration of justice; and, as it had done before, it added a two-level increase under Section 3Bl.l(c) for Washington’s leading role in the offense; and, again as before, it added a two-level increase under Section 3C1.1 based upon Washington’s perjured testimony at trial. The parties do not dispute these adjustments.

The court then departed upwards 13 levels to a level of 32 pursuant to Sections 5K2.0 and 5K2.9.3 The court explained its reasoning for the upward departures and resentenced Washington to 144 months.4 Washington timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

ANALYSIS

Washington claims that the words “remand for the limited purpose” narrowed the scope of the mandate to the extent that the district court had no authority to depart upward when resentenc-ing.5 We reject this argument.

The parties argue at length about whether the mandate effected a “limited remand.” We have used the term “limited remand” to describe a remand to the district court for proceedings prior to this court’s consideration of the merits of an appeal. See, e.g., Mirchandani v. United States, 836 F.2d 1223, 1225 (9th Cir.1988) (limited remand ordered for the district court to hear a motion to reopen the proceedings to consider newly discovered evidence). Once an appeal has been decided on the merits, the mandate is issued. Fed. R.App. P. 41. If the case is remanded for further proceedings, the trial court must proceed in accordance with the mandate and the law of the case as established on appeal. Stevens v. F/V Bonnie Doon, 731 F.2d 1433, 1435 (9th Cir.1984). The mandate “is controlling as to all matters within its compass, but leaves the district court any issue not expressly or impliedly disposed of on appeal.” Id.

In United States v. Caterino, 29 F.3d 1390 (9th Cir.1994), (overruled on other grounds by Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995)), we stated that the general practice in a remand for resentencing was to vacate the entire sentence. We will presume that this general practice was followed unless there is “clear evidence to the contrary.” 29 F.3d at 1395.

The inquiry in this case is the scope of the mandate. We decline to determine whether the remand is a “general” or “limited” remand, because these terms are not helpful to the inquiry.

The mandate first vacated the sentence, then remanded “for the limited purpose of recalculating [the] base offense level under section 2J1.2, without applying the cross-reference to section 2X3.1” and finally directed the district court to “resentence accordingly.” The government pointed out in the first appeal that if the cross-reference were held to be inapplicable [which it was], the government would seek a similar sentence through upward departure.6 The mandate did not prohibit adjustments to the base offense level nor proscribe a departure.

In United States v. Moreno-Hernandez, 48 F.3d 1112 (9th Cir.1995), we vacated a defendant’s 125-month sentence because the government did not prove that the felony charged in the indictment was an aggravated felony. The district court re-sentenced the defendant for a lesser term of imprisonment on the felony, but applied sentencing enhancements and ordered the sentences to run consecutively, which resulted in a total restructured sentence of 120 months. The defendant argued that the district court erred by using the guidelines to impose a sentence substantially similar to the original erroneous sentence, thus frustrating the purpose of the mandate. We rejected that argument, stating, “[W]e did not limit the overall sentence the district court could impose, nor did we circumscribe the manner in which the court could apply the Sentencing Guidelines. We simply directed the district court to limit its sentence on Count 4 to the five-year maximum prescribed by section 1326(b)(1).” 48 F.3d at 1117. Accord, United States v. Ponce, 51 F.3d 820, 826 (9th Cir.1995).

Similarly, in this case, the mandate directed the district court to calculate the base offense level without application of the cross-reference. The district court did that. The mandate did not limit the overall sentence nor circumscribe the manner in which the court could apply other guideline provisions, including the applicability of departures under Sections 5K2.0 and 5K2.9.

The district court specifically identified the factors which justified the departures. See United States v. Sablan, 114 F.3d 913, 916 (9th Cir.1997) (en banc), cert. denied, — U.S. -, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998). The district court’s explanation for the extent of the departures cannot be said to be unreasonable; therefore, the sentence imposed is affirmed. Id.

Washington argues that the district court erred in ordering the sentences to run consecutively and in computing the sentence on the conspiracy court. The government contends that Washington cannot raise these arguments because the scope of the mandate precludes the district court from examining any other sentencing issues. We reject the government’s position because of our holding that the mandate precluded only the reexamination of one sentencing issue — the application of the cross-reference in Section 2X3.1. When the district court resentenced Washington, it put together a new sentencing “package.” See United States v. Moreno-Hernandez, 48 F.3d at 1116. Accord, United States v. Petty, 80 F.3d 1384, 1388 (9th Cir.1996). Washington preserved his sentencing arguments in the district court and they are properly before us. See United States v. Sanchez, 908 F.2d 1443, 1447 (9th Cir.1990).

Nevertheless, we find Washington’s arguments to be without merit. The district court had authority to impose consecutive sentences, see United States v. Wylie, 625 F.2d 1371, 1382 (9th Cir.1980), and the district court did not err in calculating the sentence on the conspiracy count.

AFFIRMED.