United States v. Wilson , 326 F. App'x 221 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4789
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTHONY KEITH WILSON,
Defendant – Appellant,
DONNA C. ADKINS; ALISIA H. AKBAR; CHERYL L. AMAKER; LACARIA
BROWN; LUTHER BRYAN; CHASE MANHATTAN MORTGAGE CORPORATION;
LAVACA COUNTY TEXAS; RANDY MARTIN; GEORGEAN MCCONNELL;
JOSEPH E. MCCONNELL; CHRISTOPHER M. MORRIS; FLORENCE
NOLLKAMPER; GUSSIE D. NOLLKAMPER; JOHN M. WARTHER; WELLS
FARGO HOME MORTGAGE, INCORPORATED,
Parties-in-Interest.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:02-cr-00548-CMC-10)
Submitted: April 23, 2009 Decided: May 8, 2009
Before WILLIAMS, Chief Judge, DUNCAN, Circuit Judge, and John
Preston BAILEY, Chief United States District Judge for the
Northern District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
Michael Chesser, Aiken, South Carolina, for Appellant. Beth
Drake, Mark C. Moore, Jane Barrett Taylor, Assistant United
States Attorneys, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Anthony Keith Wilson was convicted by a jury of
conspiracy to distribute five kilograms or more of cocaine and
fifty grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2006), and was sentenced to 420 months in
prison. Wilson appealed, challenging his conviction and
sentence. We affirmed Wilson’s conviction and rejected claims
relating to Wilson’s sentence, but because he was sentenced
under the then-mandatory Sentencing Guidelines, vacated and
remanded for resentencing consistent with United States v.
Booker, 543 U.S. 220 (2005). See United States v. Davis, 270 F.
App’x 236 (4th Cir. March 17, 2008) (unpublished).
On remand, the district court imposed a 320-month
variant sentence and Wilson timely appealed. Counsel for Wilson
has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), alleging that he has found no meritorious issues for
appeal but asserting that Wilson’s variant sentence “was in
excess of that necessary to comply with the purposes of 18
U.S.C. 3553(a).” Wilson has filed a pro se supplemental brief
asserting that: (i) the district court erred when it rejected
several objections on remand under the mandate rule; (ii) his
sentence on remand was imposed “based in part on the mandatory
guideline system” because the district court refused to revisit
Wilson’s previous objections to his Guidelines range
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calculation; (iii) the district court erred when it allegedly
failed to consider his objection regarding the Government’s 21
U.S.C. § 851 (2006) information at his first sentencing; and
(iv) his sentence is unreasonable because it “exceeded the
statutory maximum by six years,” was based on drug amounts not
foreseeable to him, and was based on pre-conspiracy conduct.
The Government has declined to file a responding brief. Finding
no error, we affirm the district court’s judgment.
In accordance with Anders, we have reviewed the
record in this case and have found no meritorious issues for
review. First, because the vast majority of Wilson’s arguments
were either litigated by Wilson on his first appeal and were
rejected, or could have been litigated but were not, the mandate
rule precludes their present consideration by this court. 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 the 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.”).
“[T]he doctrine [of the law of the case] posits that
when a court decides upon a rule of law, that decision should
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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) (internal citation and quotation marks omitted). 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. (internal citation and quotation marks omitted); see Doe v.
Chao, 511 F.3d 461, 464-66 (4th Cir. 2007) (discussing mandate
rule and its exceptions). Because Wilson’s claims do not fall
within any of the above-mentioned exceptions, he may not raise
these claims on this appeal.
We also reject Wilson’s challenges to the validity of
the variant sentence imposed on remand. After Booker, a
sentence is reviewed for reasonableness, using an abuse of
discretion standard of review. Gall v. United States, 128 S.
Ct. 586, 597 (2007). The first step in this review requires the
court to ensure that the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 161
(4th Cir. 2008). Assuming the district court committed no
significant procedural error, this court must next consider the
substantive reasonableness of the sentence imposed, taking into
account the totality of the circumstances. Id. at 161-62.
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While an appellate court may presume that a sentence
within the Guidelines range is reasonable, it may not presume
that a sentence outside the Guidelines range is unreasonable.
Gall, 128 S. Ct. at 597; see United States v. Abu Ali, 528 F.3d
210, 261 (4th Cir. 2008) (“[A] sentence that deviates from the
Guidelines is reviewed under the same deferential abuse-of-
discretion standard as a sentence imposed within the applicable
guidelines range.”), cert. denied, 129 S. Ct. 1312 (2009).
Rather, in reviewing a sentence outside the Guidelines range, we
“consider the extent of the deviation, but must give due
deference to the district court's decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.” Gall,
128 S. Ct. at 597. Even if this court would have imposed a
different sentence, this fact alone will not justify vacatur of
the district court’s sentence. Id.We find the district court’s 320-month variant
sentence to be reasonable. On remand, the district court
entertained counsel’s argument regarding the weight that should
be afforded the § 3553(a) factors, heard from Wilson’s mother,
allowed Wilson an opportunity to allocute, and thoroughly
considered the § 3553(a) factors before imposing Wilson’s
sentence. We conclude that the district court adequately
explained its rationale for imposing the variant sentence, and
that the reasons relied upon by the district court are valid
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considerations under § 3553(a) and justify the sentence imposed.
See United States v. Pauley, 511 F.3d 468, 473-76 (4th Cir.
2007).
Having reviewed the record in this case and finding no
meritorious issues for review, we affirm the district court’s
judgment. This court requires that counsel inform Wilson in
writing of his right to petition the Supreme Court of the United
States for further review. If Wilson requests that a petition
be filed, but counsel believes that such a petition would be
frivolous, then counsel may move this court for leave to
withdraw from representation. Counsel's motion must state that
a copy thereof was served on Wilson. 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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