United States v. Carey: “Prior Sentence” Includes Post-Conviction, Pre-Resentencing Terms & Other Lessons on Limited Remand

Introduction

United States v. Damon Todd Carey (3d Cir. July 25 2025) addresses two recurring problems in federal criminal practice: (1) how far the district court may look beyond a limited remand from the court of appeals, and (2) what counts as a “prior sentence” under U.S.S.G. § 4A1.1 when recalculating criminal-history points at a resentencing.

The defendant, Damon Carey, originally received a 228-month sentence for multiple drug and firearm offenses. On direct appeal (United States v. Carey, 72 F.4th 521 (3d Cir. 2023) (“Carey I”)), the Third Circuit vacated only Count 1 and ordered a limited remand “for resentencing on the remaining counts.” At the resentencing, the district court denied Carey’s efforts to reopen old suppression and sufficiency challenges, added criminal-history points for a new prison term he incurred while awaiting resentencing, and imposed a 200-month total sentence.

In Carey II, the Third Circuit affirms, creating a noteworthy gloss on both the mandate rule and § 4A1.1. The panel holds that:

Litigation outside the specific scope of a limited remand is barred by the mandate rule and the law-of-the-case doctrine, even if labeled as “reconsideration.”
A sentence imposed after the original sentencing but before resentencing qualifies as a “prior sentence” under § 4A1.1(b) and may increase a defendant’s criminal-history score.

Summary of the Judgment

The Third Circuit (Judge Chung, joined by Judges Phipps and Roth) upholds the 200-month resentencing. Key holdings:

Mandate Rule/Law of the Case. The defendant’s renewed suppression, Rule 29 (acquittal), and Rule 33 (new trial) arguments were foreclosed because (a) the appellate mandate was limited to resentencing and (b) those issues were decided in Carey I.
Evidence Limitation on Remand. The district court correctly refused to hear evidence aimed at relitigating the jury’s finding that the drug conspiracy involved cocaine in addition to marijuana.
Criminal-History Points. A 5–11-month sentence Carey received for “possession of a controlled substance by an inmate” entered after his 2022 sentencing but before the 2024 resentencing constituted a “prior sentence” under § 4A1.1(b). Adding two points did not violate the Ex Post Facto Clause or Due Process, nor did any alleged mistake alter Carey’s Guidelines range.

Analysis

A. Precedents Cited and Their Influence

United Artists Theatre Circuit v. Warrington, 316 F.3d 392 (3d Cir. 2003) – articulates the modern Third-Circuit formulation of the law-of-the-case doctrine.
United States v. Kennedy, 682 F.3d 244 (3d Cir. 2012) – confirms that a district court “has no power or authority to deviate from the mandate issued by an appellate court.” Key for limiting the resentencing.
Pepper v. United States, 562 U.S. 476 (2011) – recognizes that a resentencing court may consider post-sentencing rehabilitation. Carey II analogizes from Pepper to allow consideration of post-sentencing misconduct as “prior sentence” data.
United States v. Jackson, 132 F.4th 266 (3d Cir. 2025) – latest word on plain-error review and mandate rule; cited for standards of review.
Watts, 519 U.S. 148 (1997) and 18 U.S.C. § 3661 – support the broad scope of information that a sentencing court may consider.

B. Legal Reasoning

Mandate Rule & Law of the Case.
The panel explains that once an appellate court remands “for the limited purpose of resentencing,” every previously adjudicated claim—suppression rulings, sufficiency challenges, new-trial motions—remains closed. The district court’s only permissible task is to apply the vacatur (here, Count 1) and recalculate the sentence. Carey’s attempt to re-open collateral issues violated both doctrines.
Redefining “Prior Sentence.”
Section 4A1.1(b) adds two criminal-history points for “each prior sentence of imprisonment of at least sixty days.” Section 4A1.2(a) defines “prior sentence” as “any sentence previously imposed … for conduct not part of the instant offense.” There is no express temporal cutoff keyed to “original sentencing” versus “resentencing.” The court finds the words “previously imposed” unambiguously include sentences imposed in the interval between the two proceedings.

The opinion relies heavily on Congress’s directive in § 3661 (“no limitation shall be placed on the information a sentencing court may consider”) and the Supreme Court’s green-light in Pepper for considering post-sentencing conduct. If rehabilitation counts in a defendant’s favor, post-sentencing criminal conduct must similarly count against him.
Constitutional Claims Rejected.
- Ex Post Facto: No new law was applied; § 4A1.1(b) existed in identical form at both sentencings.
- Due Process (Vindictiveness): The ultimate sentence (200 months) was lower than the original sentence (228 months), negating any presumption of vindictiveness.
Harmless-Error Safety Net.
Even if the district court should have added only one, not two, points for the contraband offense under § 4A1.1(c), Carey would still land in Criminal-History Category III, leaving the Guidelines range unchanged—a textbook harmless-error result (United States v. Isaac, 655 F.3d 148 (3d Cir. 2011)).

C. Impact of the Judgment

Carey II will resonate well beyond its “not-precedential” label because:

Guidelines Calculation: Defense counsel must now assume that any custodial term imposed before a resentencing—no matter how small—may yield additional criminal-history points in the Third Circuit.
Strategic Timing: Prosecutors may postpone plea offers or resentencing dates if a defendant faces pending state charges that could ripen into a “prior sentence” and elevate his Guidelines range.
Mandate Rule Clarity: The opinion reinforces that limited remands are exactly that—limited. Attempts to sneak other issues back into the case will be summarily rejected.
Persuasive Authority Elsewhere: Sister circuits often look to unpublished Third-Circuit rulings, especially on federal procedural topics. Expect citations to Carey II in future mandate-rule disputes.

Complex Concepts Simplified

Mandate Rule. Think of an appellate “mandate” as a detailed set of instructions the district court must follow once a case is sent back. The court cannot color outside those lines.
Law of the Case. Once a court has decided an issue, that issue is normally not revisited in later stages of the same litigation, unless new facts or a higher-court decision intervenes.
Ex Post Facto Clause. The Constitution forbids punishing someone under a law that did not exist (or that prescribed a lesser punishment) when the crime was committed.
U.S.S.G. § 4A1.1. The Guidelines’ formula for adding criminal-history points:
- (a) 3 points for prior sentences > 1 year and 1 month
- (b) 2 points for prior sentences 60 days – 13 months
- (c) 1 point for other sentences (e.g., probation, fines) up to a cap of 4
Harmless Error. Even if a mistake occurred, the appellate court will not reverse if the outcome (e.g., Guidelines range) would have been the same.

Conclusion

United States v. Carey underscores two practical truths. First, limited remands are not blank checks; litigants cannot repurpose them to re-air settled grievances. Second, the definition of “prior sentence” under § 4A1.1 is broad enough to capture incarceration imposed between original sentencing and resentencing, tightening the Guidelines noose for defendants whose misconduct continues post-conviction. These clarifications, although issued in a non-precedential disposition, offer persuasive guidance for district courts, practitioners, and litigants navigating the complexities of federal resentencings.