United States v. Riley ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4775
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARQUEL DUSHUAN RILEY, a/k/a Mark Riley,
Defendant – Appellant,
and
RANDY MARTIN; LUTHER BRYAN; ALISIA H. AKBAR; LACARIA BROWN;
GEORGEAN MCCONNELL; GUSSIE D. NOLLKAMPER; FLORENCE
NOLLKAMPER; CHRISTOPHER M. MORRIS; LAVACA COUNTY TEXAS;
JOSEPH E. MCCONNELL; JOHN M. WARTHER; WELLS FARGO HOME
MORTGAGE, INCORPORATED; CHERYL L. AMAKER; DONNA C. ADKINS;
CHASE MANHATTAN MORTGAGE CORPORATION,
Parties-in-Interest.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:02-cr-00548-CMC-18)
Submitted: December 16, 2009 Decided: January 4, 2010
Before NIEMEYER and DUNCAN, Circuit Judges, and John Preston
BAILEY, Chief United States District Judge for the Northern
District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
Lourie A. Salley, III, Lexington, South Carolina, for Appellant.
W. Walter Wilkins, United States Attorney, Jane B. Taylor,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Marquel Dushuan Riley was convicted by a jury of
conspiracy to distribute five kilograms or more of cocaine and
fifty grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2006), and was sentenced to 272 months in
prison. Riley appealed, challenging his conviction and
sentence. We affirmed Riley’s conviction but because he was
sentenced under the then-mandatory Sentencing Guidelines,
vacated and remanded for resentencing under United States v.
Booker, 543 U.S. 220 (2005). See United States v. Davis, 270 F.
App’x 236 (4th Cir. March 17, 2008) (unpublished) (“Davis I”).
On remand, the district court imposed a 200-month
variant sentence and Riley timely appealed. Riley asserts that
his variant sentence should be vacated because he argues that
the district court erred when it enhanced his original
Guidelines range based on his possession of a dangerous weapon
during the commission of the crime for which he was convicted.
According to Riley, the Supreme Court’s decision in District of
Columbia v. Heller, 128 S. Ct. 2783 (2008), requires a district
court to exercise “greater scrutiny” before enhancing a sentence
for lawful possession of a firearm, and “require[s] a nexus
between possession of a firearm and commission of the crime.”
Finding no error, we affirm the district court’s judgment.
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We find that any arguments pertaining to the
calculation of Riley’s Guidelines range are barred from this
court’s consideration under the mandate rule; Riley either
previously raised his objections at his original sentencing and
on his first appeal, or could have raised them but did not. See
Volvo Trademark Holding Aktiebolaget v. Clark Mach. Co.,
510 F.3d 474, 481 (4th Cir. 2007) (“[A] remand proceeding is not
the occasion for raising new arguments or legal theories.”);
United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (stating
that 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.”).
Moreover, “the doctrine [of the law of the case]
posits that when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent
stages in the same case.” United States v. Aramony, 166 F.3d
655, 661 (4th Cir. 1999) (internal citation and quotation marks
omitted). The law of the case must be applied
in all subsequent proceedings in the same case in the
trial court or on a later appeal . . . unless: (1) a
subsequent trial produces substantially different
evidence, (2) controlling authority has since made a
contrary decision of law applicable to the issue, or
(3) the prior decision was clearly erroneous and would
work manifest injustice.
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Id. (internal citation and quotation marks omitted); see Doe v.
Chao, 511 F.3d 461, 464-66 (4th Cir. 2007) (discussing mandate
rule and its exceptions).
This court’s mandate in Davis I only directed the
district court to resentence Riley under a non-mandatory
Guidelines regime. See Davis, 270 F. App’x at 248, 256 & n.16.
Because Riley points to no circumstances that would allow this
court to consider his Guidelines range calculation on this
appeal, Riley’s challenge to his Guidelines range is foreclosed
by the mandate rule.
Riley’s suggestion that Heller altered the legal
landscape, thereby excepting his Guidelines range challenge from
the mandate rule, is meritless. Heller held that the Second
Amendment secures an individual’s right to keep handguns in the
home for self-protection. Heller, 128 S. Ct. at 2821-22.
Heller also emphasized, however, that the opinion should not
“cast doubt on longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.” Id. at 2816-17.
Because the Supreme Court explicitly stated that it identified
“these presumptively lawful regulatory measures only as
examples” and that its “list [did] not purport to be
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exhaustive,” id. at 2817 n.26, Heller had no effect on the
Guidelines’ directive to enhance a Guidelines range if a weapon
was present during the commission of a crime. See U.S.
Sentencing Guidelines Manual § 2D1.1(b)(1) & cmt. n.3 (2008).
Because Heller is not “controlling authority [that] has since
made a contrary decision of law applicable to the issue,”
Riley’s objection to his weapons enhancement is not excepted
from the mandate rule.
Based on the foregoing, we affirm the district court’s
judgment. 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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