United States v. Fred Boadu , 637 F. App'x 740 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4016
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRED YAO BOADU,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Senior District
Judge. (8:12-cr-00419-DKC-1)
Submitted: December 28, 2015 Decided: February 3, 2016
Before TRAXLER, Chief Judge, and GREGORY and DIAZ, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
William C. Brennan, Jr., BRENNAN MCKENNA, CHARTERED, Greenbelt,
Maryland, for Appellant. David Ira Salem, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Fred Yao Boadu of possession with intent
to distribute 28 grams or more of cocaine base, 21 U.S.C.
§ 841(a)(1) (2012) (Count One), possession of a firearm in
furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)
(2012) (Count Two); felon in possession of a firearm, 18 U.S.C.
§ 922(g)(l) (2012) (Count Three); possession of a firearm with
an altered serial number, 18 U.S.C. § 922(k) (2012) (Count
Four); and possession with intent to distribute cocaine, 21
U.S.C. § 841(a)(1) (Count Five). In October 2013, the district
court sentenced Boadu below the Guidelines range to 240 months
in prison. In his first appeal, Boadu challenged only his
career offender designation and the application of a mandatory
minimum sentence. The parties moved to remand the case for
resentencing on the ground that Boadu did not qualify for the
career offender designation. In July 2014, this court granted
the parties’ joint motion, vacated the judgment, and remanded to
the district court for resentencing. At resentencing in
December 2014, the district court noted that Boadu now had a
newly calculated lower advisory Sentencing Guidelines range, but
that he was subject to a statutory mandatory minimum of 180
months’ imprisonment, which Boadu received.
In this second appeal, Boadu’s attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
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certifying that there are no meritorious issues for appeal but
questioning whether (1) sufficient evidence supports the jury’s
finding that Boadu possessed 28 grams or more of cocaine base;
(2) the district court erred by not severing Count Five; (3) the
district court erred by not giving a reasonable doubt
instruction; and (4) there was a fatal variance in the
indictment because it charged an altered serial number but the
evidence showed an obliterated serial number. Boadu has filed a
pro se supplemental brief arguing that the state and federal
authorities working jointly on his case under Project Exile
violated his constitutional rights. The Government has declined
to file a response.
Counsel’s and Boadu’s pro se challenges to his convictions
are barred by the mandate rule. “The mandate rule is a specific
application of the law of the case doctrine” to cases that have
been remanded on appeal. Volvo Trademark Holding Aktiebolaget
v. Clark Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007). By
limiting subsequent proceedings to only those issues falling
within the scope of the appellate court’s mandate, the rule
ensures that litigants in remanded cases get only one bite at
the apple, foreclosing “relitigation of issues expressly or
impliedly decided by the appellate court.” United States v.
Bell, 5 F.3d 64, 66 (4th Cir. 1993).
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On appeal, a party waives “any issue that could have been
but was not raised” before the appellate court. Doe v. Chao,
511 F.3d 461, 465 (4th Cir. 2007). Because it has not been
tendered to the appellate court for decision, an issue that has
been waived on an initial appeal is “not remanded” to the
district court even if other issues in the case are returned to
the court below. Id. Given that a waived argument is not
within the scope of the appellate mandate, the mandate rule thus
holds that, “where an argument could have been raised on an
initial appeal, it is inappropriate to consider that argument on
a second appeal following remand.” Omni Outdoor Adver. v.
Columbia Outdoor Adver., 974 F.2d 502, 505 (4th Cir. 1992)
(internal quotation marks omitted). Boadu’s failure to
challenge his convictions in his first appeal precludes his
efforts to challenge them before this court now. Id.Turning to the sentence, although neither counsel nor Boadu
directly challenge the new sentence, under Anders, we review the
sentence for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). This
review entails appellate consideration of both the procedural
and substantive reasonableness of the sentence. Id. at 51. In
determining procedural reasonableness, we consider whether the
district court properly calculated the applicable advisory
Guidelines range, gave the parties an opportunity to argue for
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an appropriate sentence, considered the 18 U.S.C. § 3553(a)
(2012) factors, and sufficiently explained the selected
sentence. Id. at 49-51. If we find no significant procedural
error, we examine the substantive reasonableness of a sentence
under “the totality of the circumstances.” Gall, 552 U.S. at
51. “Any sentence that is within or below a properly calculated
Guidelines range is presumptively reasonable.” United States v.
Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421 (2014). Such a presumption can only be rebutted by a
showing that the sentence is unreasonable when measured against
the § 3553(a) factors. Id. Here, the district court’s
imposition of the statutory mandatory minimum is presumptively
reasonable. We conclude that Boadu’s sentence is both
procedurally and substantively reasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the judgment. This court requires
that counsel inform Boadu, in writing, of his right to petition
the Supreme Court of the United States for further review. If
Boadu requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move
in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy of the motion was served
on Boadu. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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