United States v. Tyrell Bellamy ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4102
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYRELL BELLAMY, a/k/a Clifton Tyrell Evans, a/k/a Psycho,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
District Judge. (7:08-cr-00042-FL-1)
Submitted: August 7, 2012 Decided: August 14, 2012
Before MOTZ, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James S. Perry, PERRY, PERRY & PERRY, Kinston, North Carolina,
for Appellant. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tyrell Bellamy pled guilty to one count of possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2006). The district court initially
sentenced Bellamy as an armed career criminal to 235 months’
imprisonment. Bellamy appealed, and, in an unpublished opinion
following oral argument, we affirmed Bellamy’s conviction,
vacated his sentence, and remanded for resentencing under United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).
United States v. Bellamy, 455 F. App’x 346, 348-49 (4th Cir.
2011) (No. 09–4355).
On remand, the district court established a new
Guidelines range without the armed career criminal enhancement.
The court calculated Bellamy’s Guidelines range under the U.S.
Sentencing Guidelines Manual (“USSG”) (2011) at eighty-four to
105 months’ imprisonment and sentenced Bellamy to 105 months’
imprisonment. Bellamy appeals, arguing that his Sixth Amendment
right to a jury trial was violated when the district court
increased his base offense level four levels under USSG
§ 2K2.1(b)(6)(B) based on facts not proven to a jury beyond a
reasonable doubt or admitted by him. We affirm.
As an initial matter, we conclude that the mandate
rule does not preclude our consideration of Bellamy’s argument
that the district court erred in imposing the four-level
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enhancement. The mandate rule “forecloses relitigation of
issues expressly or impliedly decided by the appellate court,”
as well as “issues decided by the district court but foregone on
appeal or otherwise waived, for example because they were not
raised in the district court.” United States v. Bell, 5 F.3d
64, 66 (4th Cir. 1993). Bellamy, however, lacked the
opportunity or incentive in his initial appeal to raise the
Guidelines challenge he now presses because the Guidelines range
calculated and applied at initial sentencing was based on the
district court’s determination that he was an armed career
criminal. Accordingly, the mandate rule does not bar this
issue. See United States v. Quintieri, 306 F.3d 1217, 1229-30
(2d Cir. 2002) (“[I]f a sentencing determination had no
practical effect on a defendant’s sentence at the original
sentencing but becomes relevant only after appellate review, a
defendant is free to challenge that sentencing determination on
remand, and ultimately on reappeal, despite the failure to
challenge that determination initially.”); cf. Omni Outdoor
Adver., Inc. v. Columbia Outdoor Adver., Inc., 974 F.2d 502, 505
(4th Cir. 1992) (“It is elementary 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.”
(internal quotation marks omitted)).
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With respect to the merits of Bellamy’s challenge, we
conclude that his Sixth Amendment right to a jury trial was not
violated when the district court increased his base offense
level four levels under USSG § 2K2.1(b)(6)(B). The district
court’s application of the enhancement did not result in a
sentence greater than that authorized by his guilty plea.
18 U.S.C. § 924(a)(2). Accordingly, the district court did not
violate the Sixth Amendment in applying the enhancement.
See Rita v. United States, 551 U.S. 338, 352 (2007) (recognizing
that the Supreme Court’s “Sixth Amendment cases do not
automatically forbid a sentencing court to take account of
factual matters not determined by a jury and to increase the
sentence in consequence”); United States v. Benkahla, 530 F.3d
300, 312 (4th Cir. 2008) (holding that, as long as the
Guidelines range is treated as advisory, a sentencing court may
consider and find facts by a preponderance of the evidence,
provided that those facts do not increase a sentence beyond the
statutory maximum); United States v. Battle, 499 F.3d 315,
322-23 (4th Cir. 2007) (stating that the district court did not
violate the Sixth Amendment by imposing a sentence based on
facts not found by a jury).
Accordingly, we affirm the district court’s amended
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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