United States v. Rice ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4077
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TOMMY RICE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Margaret B. Seymour, District
Judge. (CR-01-887)
Submitted: August 13, 2004 Decided: September 9, 2004
Before WILKINS, Chief Judge, TRAXLER, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Rodney W. Richey, RICHEY & RICHEY, P.A., Greenville, South
Carolina, for Appellant. Elizabeth Jean Howard, OFFICE OF THE
UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Tommy Rice appeals following a remand to the district
court for resentencing. Because the district court complied with
our mandate and we find no reversible error, we affirm.
Rice was convicted of one count of aiding and abetting
the possession with intent to distribute and the distribution of
fifty grams or more of crack cocaine in violation of 18 U.S.C. § 2(2000) and 21 U.S.C. § 841(a)(1) (2000), for which he received a
sentence of 293 months in prison. Rice appealed, contending that
the evidence was insufficient to sustain his conviction and that
his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000).
The Government cross-appealed, arguing that the district court
erred in declining to impose the statutorily mandated sentence of
life imprisonment. We affirmed Rice’s conviction, but vacated his
sentence and remanded for resentencing to the required term of life
imprisonment. United States v. Rice, No. 02-4673, 2003 WL 22383727(4th Cir. Oct. 20, 2003) (unpublished).
Upon remand, the district court resentenced Rice to life
imprisonment. Rice now appeals. His attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), claiming
that the sentence of life imprisonment is constitutionally
disproportionate to Rice’s offense conduct, but stating that there
are no meritorious grounds for appeal. Rice was advised of his
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right to file a pro se supplemental brief, but declined to file
one.
Under the mandate rule, consideration of the
proportionality of Rice’s sentence is foreclosed because this issue
was decided in the original appeal. United States v. Bell, 5 F.3d
64, 66 (4th Cir. 1993). 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 his client, in writing, of his right
to petition the Supreme Court of the United States for further
review. If Rice 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
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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