United States v. Demetrious Moore , 457 F. App'x 243 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4470
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DEMETRIOUS ADONIS MOORE, a/k/a Meechie,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:08-cr-00124-HMH-1)
Submitted: November 16, 2011 Decided: December 12, 2011
Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas E. Vanderbloemen, GALLIVAN, WHITE & BOYD, P.A.,
Greenville, South Carolina, for Appellant. William N. Nettles,
United States Attorney, E. Jean Howard, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demetrious Adonis Moore was convicted by a jury of
carjacking (“Count I”), in violation of 18 U.S.C. § 2119 (2006);
extortion (“Count II”), in violation of 18 U.S.C. § 1951(a)
(2006); and bank robbery (“Count III”), in violation of 18
U.S.C. § 2113(a) (2006). The district court sentenced Moore to
480 months’ imprisonment. Moore appealed, and in an unpublished
opinion following oral argument, “we affirm[ed] Moore’s
carjacking conviction (Count I) and sentencing enhancements,
vacat[ed] the bank robbery conviction (Count III) and the
portion of his sentence related to it, and remand[ed] for
resentencing. Such remand is for the limited purpose of
imposing Moore’s sentence in the absence of his bank robbery
conviction.” United States v. Moore, 402 F. App’x 778, 784 (4th
Cir. 2010) (No. 09-4175) (unpublished).
On remand, the district court utilized the same
Guidelines calculations applied at Moore’s initial sentencing
with respect to Counts I and II to establish a new Guidelines
range in the absence of Count III. The district court
established a total offense level of thirty-nine and a criminal
history category I, yielding a Guidelines range of 262 to 327
months, and sentenced Moore to 327 months’ imprisonment. Moore
appeals, challenging the application of various sentencing
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enhancements and arguing that his new sentence is substantively
unreasonable. Finding no error, we affirm.
As an initial matter, we conclude that the mandate
rule precludes us from considering Moore’s argument that the
district court procedurally erred by imposing multiple
sentencing enhancements that he asserts constituted
impermissible double counting. 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). In our prior
opinion, we vacated only that portion of Moore’s sentence
related to his bank robbery conviction. Moore now seeks to
challenge sentencing enhancements that arose in the context of
his carjacking and extortion convictions. Because he failed to
raise his double-counting argument during his original
sentencing hearing or in his first appeal and no exception to
the mandate rule applies, see United States v. Aramony, 166 F.3d
655, 661 (4th Cir. 1999) (discussing exceptions), the mandate
rule bars consideration of that argument in this appeal. See
Volvo Trademark Holding Aktiebolaget v. Clark Mach. Co., 510
F.3d 474, 481 (4th Cir. 2007) (“[U]nder the mandate rule, a
remand proceeding is not the occasion for raising new arguments
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or legal theories.”); 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.”).
Turning to Moore’s challenge to the substantive
reasonableness of his sentence, we conclude that we may address
this claim because it could not have been considered previously
by this court. Moore asserts that his sentence is unduly long
in comparison to similar defendants, and it does not account for
his personal history and characteristics. Moore properly
preserved this challenge “[b]y drawing arguments from [18 U.S.C.
§ 3553(a) (2006)] for a sentence different than the one
ultimately imposed.” United States v. Lynn, 592 F.3d 572, 578
(4th Cir. 2010).
We review sentences for reasonableness, applying an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). We first examine the sentence for “significant
procedural error.” Id. If we find the sentence procedurally
reasonable, we review the substantive reasonableness of the
sentence, “taking into account the totality of the
circumstances.” United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007) (internal quotation marks omitted). A sentence
within a properly calculated Guidelines range will be presumed
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reasonable. United States v. Mendoza-Mendoza, 597 F.3d 212, 216
(4th Cir. 2010).
After a review of the record, we conclude that Moore
has failed to overcome the presumption of reasonableness
accorded his within-Guidelines sentence. Moore’s argument that
his sentence is unduly disparate when compared to his
co-defendants’ sentences and to sentencing statistics is without
merit, as Moore cannot demonstrate that he is similarly situated
to these proposed comparators. See United States v. Abu Ali,
528 F.3d 210, 264 (4th Cir. 2008). Moore’s contention that his
sentence is greater than necessary to serve the goals of
sentencing similarly lacks merit, as Moore has not demonstrated
that his mitigating characteristics require a lesser sentence
than the one imposed by the district court. See Pauley, 511
F.3d at 474.
Accordingly, we affirm the 327-month sentence imposed
by the district court on remand. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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