United States v. Querubin , 211 F. App'x 209 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4739
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RENANTE BONITO QUERUBIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:04-cr-00002)
Submitted: November 27, 2006 Decided: December 28, 2006
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Robert B. Rigney, PROTOGYROU & RIGNEY, P.L.C., Norfolk, Virginia,
for Appellant. Chuck Rosenberg, United States Attorney, Laura M.
Everhart, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Renante Bonito Querubin was originally sentenced to 260
months’ imprisonment for his conviction of possession with intent
to distribute methamphetamine in violation of 20 U.S.C.
§ 841(a)(1), (b)(1)(A)(viii) (2000), and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1) (2000). Upon Querubin’s timely appeal, we affirmed his
conviction, vacated the sentence, and remanded for further
proceedings consistent with United States v. Booker, 543 U.S. 220(2005). See United States v. Querubin, 150 F. App’x 233 (4th Cir.
2005) (unpublished). On remand, the district court resentenced
Querubin to 252 months’ imprisonment. Querubin again appeals. For
the reasons that follow, we affirm.
On appeal, Querubin repeats several arguments previously
made in his first appeal of the original judgment and order of the
district court. However, this court has previously considered and
rejected these arguments on appeal. Therefore, these claims are
precluded by the mandate rule, which “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.” United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). A
trial court may reopen an issue on remand only if (1) there has
been a dramatic change in the controlling legal authority,
(2) significant new evidence has been discovered, or (3) a blatant
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error has occurred that will result in serious injustice if not
corrected. Id. at 67. Because Querubin has not shown that any of
the exceptions to the mandate rule apply, the district court did
not err in refusing to consider these claims.
Querubin also asserts that the district court erred
because his sentence was supported by facts not based upon prior
convictions, not found by the jury, and not admitted by Querubin
himself. In a post-Booker sentencing, the district court must
calculate the appropriate guideline range, consider the range in
conjunction with other relevant factors under the guidelines and 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and impose a sentence.
United States v. Green, 436 F.3d 449, 455-56 (4th Cir.), cert.
denied, 126 S. Ct. 2309 (2006). This court reviews a district
court’s sentence for reasonableness. United States v. Hughes, 401
F.3d 540, 546-47 (4th Cir. 2005).
After Booker, the sentencing court is authorized to make
factual findings in order to appropriately determine the
defendant’s advisory range under the guidelines, as the district
court did in the present case. United States v. Davenport, 445
F.3d 366, 370 (4th Cir. 2006). Therefore, because the district
court sentenced Querubin under an advisory guideline scheme, no
Sixth Amendment error occurred. See Hughes, 401 F.3d at 546 (in
post-Booker sentencing, district court should make all factual
findings appropriate to determination of advisory guideline range).
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Moreover, the district court properly calculated and explicitly
considered the guidelines range as well as the relevant factors
under § 3553(a), and we thus find the sentence was reasonable.
Querubin also contends that the district court did not
follow this court’s mandate in resentencing because it did not
follow the sentencing ranges referenced in this court’s opinion.
However, this court only referenced specific offense levels in the
context of describing the Booker error. This court stated in its
original opinion that “[o]n remand, the district court should first
determine the appropriate sentencing range under the guidelines,
making all the factual findings appropriate for that
determination.” Querubin, 150 F. App’x at 236. The district court
fully complied with and followed this court’s mandate.
Accordingly, we affirm Querubin’s sentence. 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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