United States v. Michael Bowers ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4264
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL CHAD BOWERS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:09-cr-00240-TDS-1)
Submitted: December 23, 2013 Decided: January 28, 2014
Before GREGORY, SHEDD, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, Tiffany T.
Jefferson, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Graham T. Green, Assistant United States Attorney, Winston-
Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In 2009, Michael Chad Bowers pled guilty to conspiracy
to possess stolen firearms, in violation of 18 U.S.C. § 371
(2012); possession of stolen firearms, in violation of 18 U.S.C.
§ 922(j) (2012); and two counts of possession of firearms by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012).
In the presentence report (“PSR”), the probation officer
calculated a base offense level of twenty-six because the
offense involved a Norinco SKS 7.62x39 rifle (“the Norinco”), a
semiautomatic firearm that is capable of accepting a large
capacity magazine, and Bowers had two prior felony convictions
for crimes of violence. See U.S. Sentencing Guidelines Manual
(“USSG”) §§ 2K2.1(a)(1), 2X1.1(a) (2009). Among other
objections to the PSR, Bowers objected to the inclusion of the
Norinco in his offense conduct.
At Bowers’ first sentencing hearing, the district
court heard evidence on whether the Norinco was stolen as part
of the conspiracy and found “by a preponderance of the evidence
that the Norinco was, in fact, an assault rifle that was taken
from the break-ins and for which . . . Bowers is accountable.”
The court overruled all of Bowers’ objections to the PSR and
sentenced him to 327 months’ imprisonment — the top of his
advisory Guidelines range.
2
In Bowers’ first appeal, counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there were no meritorious issues for appeal but questioning
whether the district court erred by overruling Bowers’
objections to the PSR. Bowers also filed a pro se supplemental
brief, in which he argued that the Government had not proven
that he had possessed the Norinco or that it had been stolen.
We affirmed Bowers’ convictions and sentence, finding no clear
error in the district court’s rulings on Bowers’ objections to
the PSR. United States v. Bowers, 434 F. App’x 267, 267-68 (4th
Cir. 2011) (unpublished).
In 2012, Bowers filed a 28 U.S.C. § 2255 (2012) motion
to vacate his convictions for possession of firearms by a
convicted felon, arguing that his prior North Carolina
convictions no longer qualified as felonies pursuant to United
States v. Simmons, 649 F.3d 237, 241-47 (4th Cir. 2011) (en
banc) (holding that North Carolina conviction is punishable by
term of imprisonment exceeding one year only if particular
defendant is eligible for such sentence under state’s statutory
sentencing scheme). The district court granted the motion and
scheduled the case for resentencing with respect to the
remaining counts — conspiracy to possess stolen firearms and
possession of stolen firearms.
3
Prior to the resentencing hearing, the probation
officer recalculated Bowers’ advisory Guidelines range and
established a base offense level of twenty because the offense
involved a semiautomatic firearm capable of accepting a large
capacity magazine (the Norinco) and Bowers qualified as a
prohibited person (a known drug user). See USSG
§ 2K2.1(a)(4)(B) & cmt. n.3; see also 18 U.S.C. § 922(g)(3)
(2012). Bowers again objected to the inclusion of the Norinco
in his offense conduct, arguing that there was no conclusive
evidence that the Norinco was stolen as part of the conspiracy.
At the resentencing hearing, the district court
overruled Bowers’ objection to the PSR on two grounds: (1) it
had already considered and overruled the objection at the
original sentencing hearing; and (2) the preponderance of the
evidence presented at the resentencing hearing established that
the Norinco was stolen as part of the conspiracy. The court
sentenced Bowers to 180 months’ imprisonment — the top of his
revised advisory Guidelines range. Bowers appeals, arguing that
the evidence presented at the resentencing hearing was
insufficient to support the district court’s conclusion that the
Norinco was stolen as part of the conspiracy. We affirm.
The district court considered and rejected Bowers’
objection to the inclusion of the Norinco in the offense conduct
4
at the original sentencing hearing, and we affirmed the district
court’s ruling on appeal. Bowers, 434 F. App’x at 267-68.
Thus, Bowers’ objection falls within the “law of the case
doctrine.” See L.J. V. Wilbon, 633 F.3d 297, 308 (4th Cir.
2011) (explaining doctrine). While a district court is
permitted to deviate from the law of the case in limited,
exceptional circumstances, see United States v. Aramony, 166
F.3d 655, 661 (4th Cir. 1999) (describing exceptions), Bowers
identifies no such exception that would permit consideration of
the issue in this appeal.
Accordingly, we conclude that the district court’s
explicit factual finding at the original sentencing hearing that
the Norinco was stolen as part of the conspiracy applied at
resentencing and Bowers was not entitled to consideration of any
additional evidence on the issue. See Aramony, 166 F.3d at 661
(holding that, under law of case doctrine, “once the decision of
an appellate court establishes the law of the case, it must be
followed in all subsequent proceedings in the same case in the
trial court or on a later appeal” (internal quotation marks
omitted)). Thus, we affirm the district court’s judgment on the
ground that Bowers’ argument on appeal is foreclosed by our
prior opinion.
5
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
6