United States v. Burrell , 276 F. App'x 274 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4281
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRELL ANTONIO BURRELL, a/k/a Silly Rabbit,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:98-cr-00210-WMN)
Submitted: March 31, 2008 Decided: May 2, 2008
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Elkridge,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Jamie M. Bennett, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrell Antonio Burrell was convicted in 2000 of
conspiring to possess with intent to distribute five kilograms or
more of cocaine, 21 U.S.C. § 846 (2000) (Count One), and killing a
person in furtherance of a drug conspiracy, 21 U.S.C. § 848(e)(1)
(2000) (Count Two). He received a sentence of life imprisonment.
On appeal, we affirmed his conspiracy conviction and concluded that
there was sufficient evidence to sustain the § 848(e) conviction.
However, we vacated the § 848(e) conviction because Burrell had not
been provided with two lawyers for the death-eligible offense, as
required by statute. The case was remanded for resentencing on the
drug conspiracy alone. United States v. Ray, 61 F. App’x 37 (4th
Cir. 2003).
On remand, the district court again imposed a life
sentence. Burrell appealed his sentence and we remanded the case
again, this time for resentencing in light of United States
v. Booker, 543 U.S. 220 (2005). In March 2007, the district court
resentenced Burrell under an advisory guideline scheme, finding by
a preponderance of the evidence that he had killed two persons in
his capacity as enforcer for the conspiracy. The court applied the
cross reference in U.S. Sentencing Guidelines Manual § 2D1.1(d)(1)
(2006) to USSG § 2A1.1 (First Degree Murder), which resulted in an
offense level of 43 and a guideline range of life. The court
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imposed a sentence of life imprisonment. Burrell appeals this
sentence. We affirm.
Burrell first contends that the sentence is unreasonable
because the district court failed to make the analysis required
after Booker and merely imposed the same life sentence it had
imposed previously. A sentence is reviewed for reasonableness,
applying an abuse of discretion standard. Gall v. United States,
128 S. Ct. 586, 597-98 (2007). The appeals court first determines
whether the district court committed any procedural error, such as
failing to calculate the guideline range properly, consider the
§ 3553(a) factors, or explain the sentence adequately, id., and
then decide whether the sentence is substantively reasonable. Id.;
see also United States v. Brewer, ___ F.3d ___, 2008 WL 733395, at
*4 (4th Cir. 2008). In this case, the district court followed the
necessary procedural steps.
The appeals court must also consider the substantive
reasonableness of the sentence. Gall, 128 S. Ct. at 597. A
sentence within a properly calculated guideline range, as Burrell’s
sentence was, may be accorded a presumption of reasonableness. See
Rita v. United States, 127 S. Ct. 2456, 2462 (2007). This
presumption can be rebutted only by showing that the sentence is
unreasonable when measured against the § 3553(a) factors. United
States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006), cert.
denied, 127 S. Ct. 3044 (2007). Here, the court considered the
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§ 3553(a) factors and the arguments made by defense counsel and
explained its reasons for imposing the life sentence. We conclude
that Burrell has not shown any information that rebuts the
presumption that the guideline sentence is reasonable.
Next, relying on Booker, Burrell contends that the
application of the cross reference was error because the jury did
not find him guilty of murder. However, as the government points
out, when Burrell challenged the sufficiency of the evidence
supporting his § 848(e) conviction in his first appeal, we
concluded that the evidence was sufficient. Moreover, the district
court’s use of the preponderance of the evidence standard while
applying the guidelines as advisory does not violate the Sixth
Amendment. See United States v. Morris, 429 F.3d 65, 72 (4th Cir.
2005); see also United States v. Dalton, 409 F.3d 1247, 1252 (10th
Cir. 2005) (finding that Booker’s remedy demonstrates that judicial
factfinding by a preponderance of the evidence is unconstitutional
only when it results in mandatory increase in defendant’s
sentence). Thus, the district court did not err in this regard.
Burrell contends that the district court erred in
finding, alternatively, that he qualified for sentencing as a
career offender. However, because the court correctly applied the
cross reference in § 2D1.1(d)(1), and the resulting offense level
of 43 was higher than the career offender offense level would have
been, we need not address this issue.
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Last, Burrell maintains that he is entitled to a new
trial for the conspiracy count because it is “inextricably linked”
to the vacated capital offense. Burrell argued in his first
appeal, that “the denial of two counsel infect[ed] his entire trial
and that both counts of conviction must be vacated and remanded for
retrial.” Ray, 61 F. App’x at 52. He contended that an affirmance
of the conspiracy conviction would amount to an ex post facto
severance. We rejected his argument. Id.
Generally, “‘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) (quoting Christianson v. Colt Indus. Operating Corp., 486
U.S. 800, 815-16 (1988)). 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.”
Id. (quoting Sejman v. Warner-Lambert Co., 845 F.2d 66, 69 (4th
Cir. 1988)); see Doe v. Chao, 511 F.3d 461, 464-66 (4th Cir. 2007)
(discussing mandate rule and its exceptions).
Here, Burrell reasserts the argument that the denial of
his statutory right to two attorneys on the capital count required
reversal of the conspiracy conviction because the same conduct on
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his part underlay both charges. To the extent that he is making a
different claim, it is one that could have been raised in his first
appeal. 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
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 . . . .”).
Burrell’s claim does not fall within any of the exceptions to the
law-of-the-case doctrine.
We therefore affirm the sentence imposed by the district
court. 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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