United States v. Dalton , 433 F. App'x 164 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4310
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS JOSEPH DALTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:03-cr-00739-DCN-1)
Submitted: May 26, 2011 Decided: June 1, 2011
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jonathan McKey Milling, MILLING LAW FIRM, LLC, Columbia, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, Dean A. Eichelberger, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This case is before the court for the third time. We
most recently remanded the case for resentencing. See United
States v. Dalton, 477 F.3d 195 (4th Cir. 2007). Thomas Joseph
Dalton now claims the district court erred by not considering
his challenges to the revised presentence investigation report
(“PSR”). He also raises several issues challenging the
procedural and substantive reasonableness of the upward
departure sentence. Finding no error, we affirm.
In Dalton’s prior appeal, this court vacated the
sentence and remanded the case, directing the district court to
explain the criminal history calculation, specifying which
arrests and convictions formed the basis for additional criminal
history points. The district court was further instructed that
because Dalton was in Criminal History Category VI, it must
depart incrementally down the sentencing table to the next
higher offense level until it finds a Guideline range that is
appropriate. The district court must then explain the reasons
for departure. Despite the remand, this court concluded that
“the fact remains that an upward departure on the ground that
the criminal history category underrepresented Dalton’s criminal
history was undeniably reasonable.” Dalton, 477 F.3d at 198-99.
We conclude that Dalton’s challenges to any sentencing
enhancements contained in the revised PSR were barred from the
2
district court’s consideration, and are barred from this court’s
consideration, under the mandate rule. Dalton could have raised
his objections in his original appeal but did not. 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”).
In addition, under the law of the case doctrine, “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) (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 also
Doe v. Chao, 511 F.3d 461, 464-66 (4th Cir. 2007). The district
court rejected Dalton’s Guidelines challenges at his prior two
sentencing hearings. Dalton fails to provide any substantive
3
reason why the district court should have considered his
arguments once again.
This court reviews the district court’s sentence,
“whether inside, just outside, or significantly outside the
Guidelines range,” under a “deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This
abuse-of-discretion standard of review involves two steps; under
the first, this court examines the sentence for significant
procedural errors, and under the second, the court reviews the
substance of the sentence. United States v. Pauley, 511 F.3d
468, 473 (4th Cir. 2007) (examining Gall, 552 U.S. at 50-51).
Significant procedural errors include “failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence-including an explanation for any deviation from the
Guidelines range.” Gall, 552 U.S. at 51. If there are no
significant procedural errors, this court then considers the
substantive reasonableness of the sentence, “tak[ing] into
account the totality of the circumstances.” Id.When the district court imposes a departure sentence,
this court considers “whether the sentencing court acted
reasonably both with respect to its decision to impose such a
4
sentence and with respect to the extent of the divergence from
the sentencing range.” United States v. Hernandez-Villanueva,
473 F.3d 118, 123 (4th Cir. 2007). This court has recognized,
however, that a district court’s error in applying a departure
sentence is harmless if the sentence is ultimately justified by
the 18 U.S.C. § 3553(a) (2006) sentencing factors. United
States v. Evans, 526 F.3d 155, 165 (4th Cir. 2008) (“[E]ven
assuming the district court erred in applying the Guideline
departure provisions, [the defendant’s] sentence, which is well-
justified by [the] § 3553(a) factors, is reasonable.”); see
Puckett v. United States, 129 S. Ct. 1423, 1432 (2009) (stating
that “procedural errors at sentencing . . . are routinely
subject to harmlessness review”); United States v. Mehta, 594
F.3d 277, 283 (4th Cir.), cert. denied, 131 S. Ct. 279 (2010)
(citing cases supporting the proposition that harmless error
review applies to alleged sentencing errors).
Under U.S. Sentencing Guidelines Manual § 4A1.3(a),
the district court may upwardly depart from the Guidelines
sentence if it is determined that “the defendant’s criminal
history category substantially under-represents the seriousness
of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes[.]” The court may consider
prior sentences not used in computing the criminal history
category. See USSG § 4A1.3(2)(A).
5
As noted, this court previously ruled that the
district court’s decision to upwardly depart was reasonable.
Dalton, 477 F.3d at 198-99. Dalton challenges the extent of the
departure. We have considered his challenges to the procedural
reasonableness of the sentence and conclude there was no error.
Likewise, we conclude there was no error with the substantive
reasonableness of the sentence. Even if there was error, we
conclude the error would be harmless in light of the fact that
the district court justified the sentence by reference to the 18
U.S.C. § 3553(a) sentencing factors.
Accordingly, we affirm the amended judgment. 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
6