United States v. Smith ( 2004 )

Vacated by Supreme Court, June 8, 2009
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4928
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT JARED SMITH, a/k/a J Dog,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Charles H. Haden II,
District Judge. (CR-99-198)
Submitted: May 26, 2004 Decided: June 8, 2004
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joan A. Mooney, STILLER & MOONEY, P.L.L.C., Morgantown, West
Virginia, for Appellant. Kasey Warner, United States Attorney,
John J. Frail, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert Jared Smith appeals following a remand to the
district court for resentencing. For the reasons discussed below,
we decline to address the issue Smith raises on appeal and affirm.
Smith was convicted on one count of conspiracy to
distribute cocaine base and aiding and abetting possession with
intent to distribute cocaine base, for which he received concurrent
sentences of life in prison and twenty years in prison,
respectively. Smith appealed, contending that the district court
erred in allowing a defense witness to invoke the Fifth Amendment
privilege against self-incrimination and in increasing his offense
level by four levels under U.S. Sentencing Guidelines Manual
§ 3B1.1(a) (1999) for having an aggravating role as an organizer or
leader in the drug conspiracy. We affirmed Smith’s convictions,
but vacated his sentence and remanded for resentencing on the
ground that the district court abused its discretion by applying
the § 3B1.1(a) leadership role enhancement. United States v.
Sayles, 296 F.3d 219, 227 (4th Cir. 2002).
Upon remand, the district court resentenced Smith without
the four-level enhancement of his offense level. Thus, Smith’s
offense level was reduced to 38 and his criminal history category
remained category IV, resulting in a guideline range of 324 to 405
months in prison. He received a 405-month sentence on the
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conspiracy count and a concurrent 240-month sentence on the aiding
and abetting count.
Smith now appeals. His attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), claiming
that the evidence was insufficient to support Smith’s conspiracy
conviction, but stating that there are no meritorious grounds for
appeal. Smith was advised of his right to file a pro se
supplemental brief, but he has not filed one.
Under the mandate rule, consideration of the sufficiency
of the evidence is foreclosed because this issue was not raised in
the original appeal and is not reasonably within the scope of the
mandate. Cf. United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993)
(when mandate of appellate court is precise, district court may not
consider issues mandate has laid to rest). We accordingly decline
to address the issue because it is not properly before us.
We therefore affirm. Within the constraints of the
mandate rule, we have, as required by Anders, reviewed the record
and have found no meritorious issues for appeal. This court
requires that counsel inform her client, in writing, of his right
to petition the Supreme Court of the United States for further
review. If Smith requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court to withdraw from representation. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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