United States v. Smith , 54 F. App'x 127 ( 2002 )


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  •                           UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.                               No. 02-4365
    JOE BENNETT SMITH, III,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Western District of Virginia, at Roanoke.
    Samuel G. Wilson, Chief District Judge.
    (CR-99-10)
    Submitted: December 4, 2002
    Decided: December 20, 2002
    Before WILKINS and MOTZ, Circuit Judges, and
    HAMILTON, Senior Circuit Judge.
    Dismissed by unpublished per curiam opinion.
    COUNSEL
    Robert F. Rider, ROBERT F. RIDER, P.L.C., Roanoke, Virginia, for
    Appellant. John L. Brownlee, United States Attorney, Joseph W.H.
    Mott, Assistant United States Attorney, Roanoke, Virginia, for Appel-
    lee.
    2                       UNITED STATES v. SMITH
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Joe Bennett Smith, III, pled guilty to conspiracy to manufacture
    and distribute marijuana. After his initial appeal, we remanded the
    case for "re-sentencing and imposition of a sentence of up to 120
    months." On remand, Smith was sentenced to 100 months imprison-
    ment. He now appeals, arguing that his conviction violated the Dou-
    ble Jeopardy Clause and that his sentence was improperly enhanced
    based on a prior conviction. We dismiss the appeal.
    Although Smith sought to raise his double jeopardy claim in a sup-
    plemental brief during his first appeal, we found his argument
    untimely raised and did not consider it. Under the mandate rule, the
    district court was "bound to carry the mandate of the upper court into
    execution and could not consider the questions which the mandate
    laid at rest." Sprague v. Ticonic Nat’l Bank, 
    307 U.S. 161
    , 168 (1939).
    "[W]here an issue was ripe for review at the time of an initial appeal
    but was nonetheless foregone, the mandate rule generally prohibits
    the district court from reopening the issue on remand unless the man-
    date can reasonably be understood as permitting it to do so." United
    States v. Ben Zvi, 
    242 F.3d 89
    , 95 (2d Cir. 2001); see also United
    States v. Aramony, 
    166 F.3d 655
    , 662 (4th Cir. 1999) (same). A dis-
    trict court may consider issues foreclosed by the mandate in the fol-
    lowing "extraordinary circumstances": (1) change in controlling legal
    authority, (2) significant new evidence, or (3) a blatant error resulting
    in serious injustice. United States v. Bell, 
    5 F.3d 64
    , 67 (4th Cir.
    1993).
    Here, our mandate remanded for resentencing and, thus, impliedly
    affirmed the conviction. Accordingly, Smith is not entitled to review
    of this claim unless he can show extraordinary circumstances, which
    he has failed to do. He makes no effort to show a legal or factual
    change. While he argues that he is suffering from a serious injustice,
    UNITED STATES v. SMITH                          3
    the present record does not support his contention. In any event,
    Smith presents no reason for his failure to timely raise the issue prior
    to his plea or on his first appeal. Accordingly, because Smith has
    failed to show "extraordinary circumstances," the district court prop-
    erly followed the terms of our mandate and declined to consider
    Smith’s claim.
    Smith next seeks to challenge the statutory enhancement of his sen-
    tence based on his prior conviction. However, in his plea agreement,
    Smith waived his right to appeal his sentence. Although he reserved
    the right to challenge certain rulings, the enhancement was not one of
    the claims reserved.
    On appeal, Smith does not challenge the validity of his waiver.
    Instead, he argues that his sentence exceeds the statutory maximum.
    See United States v. Marin, 
    961 F.2d 493
    , 496 (4th Cir. 1992) (per-
    miting appeal of sentence imposed in excess of the statutory maxi-
    mum, despite general waiver of appeal). Because his indictment did
    not charge a specific drug quantity, in the absence of a prior convic-
    tion, Smith would have faced a five year maximum sentence. See 
    21 U.S.C. § 841
    (b)(1)(D) (West Supp. 2002). Thus, he asserts that his
    100-month sentence exceeds the maximum statutory sentence and
    permits him to raise his claim on appeal.
    However, Smith signed a plea agreement stating that he had a prior
    conviction and calculating his maximum exposure based on that prior
    conviction. The agreement reserved certain issues for appeal, but the
    propriety of the enhancement was not one of them. Further, the prior
    conviction and its effect on applicable statutory minimum sentences
    were discussed without objection at Smith’s guilty plea hearing. In
    addition, the Government properly served notice under 
    21 U.S.C. § 851
     (2000), which allowed the district court to sentence Smith to a
    maximum of ten years under the recidivist portion of § 841(b)(1)(D).*
    *Smith contends that the district court’s failure to inquire whether he
    affirmed or denied the conviction, as required under § 841(b), permits an
    appeal. However, any error was harmless, as Smith does not contest that
    "he has been previously convicted as alleged in the information." 
    21 U.S.C. § 851
    (b). His arguments attack the use rather than the fact of his
    prior conviction.
    4                     UNITED STATES v. SMITH
    See United States v. Novey, 
    922 F.2d 624
    , 628-29 (10th Cir. 1991)
    (filing § 851 notice alters statutory maximum). Thus, we find that
    Smith has waived appeal of this issue.
    Based on the foregoing, we dismiss Smith’s appeal. We dispense
    with oral argument, because the facts and legal contentions are ade-
    quately presented in the materials before the court and argument
    would not aid the decisional process.
    DISMISSED
    

Document Info

Docket Number: 02-4365

Citation Numbers: 54 F. App'x 127

Judges: Wilkins, Motz, Hamilton

Filed Date: 12/20/2002

Precedential Status: Non-Precedential

Modified Date: 11/6/2024