United States v. Kellam , 403 F. App'x 815 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5167
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARCEIL DAVIS KELLAM, a/k/a Charceil Kellam,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:06-cr-00041-gec-7)
Submitted: October 5, 2010 Decided: December 3, 2010
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant. Timothy J. Heaphy,
United States Attorney, Joseph W. H. Mott, Assistant United
States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charceil Kellam appeals from her life sentence imposed
following conviction by a jury of one count of conspiracy to
distribute fifty grams or more of cocaine base, in violation of
21 U.S.C. § 846 (2006) (Count One), and three counts of
distribution of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A)-(C) (2006) (Counts Eight, Seventeen, and
Eighteen). On appeal, Kellam challenges her sentence. For the
following reasons, we affirm in part, vacate in part, and remand
for further proceedings.
Kellam first argues that the district court erred in
sentencing her to life in prison on Counts One and Eight, under
21 U.S.C. § 841(b)(1)(A), because the Government failed to
establish beyond a reasonable doubt that she had the requisite
prior convictions to support the life sentences. We previously
remanded the case on this ground, holding that in Kellam’s
initial sentencing, the Government did not prove the predicate
offenses. United States v. Kellam, 568 F.3d 125, 141-46 (4th
Cir.), cert. denied, 130 S. Ct. 657 (2009). We held that,
pursuant to § 841(b)(1)(A), the Government must prove beyond a
reasonable doubt that:
(1) the defendant committed a federal drug offense
involving 50 grams or more of cocaine base; (2) the
defendant had at least two prior convictions; (3) such
prior convictions were felony drug offenses; and
(4) such convictions have become final.
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Id. at 141. Moreover, we held that the Government must prove
that Kellam was the person who committed the prior offenses.
Id. at 142. As in the initial appeal, we review the district
court’s findings of fact for clear error and its legal rulings
de novo. Id. at 143. Our review of the record supports the
district court’s findings that on remand, the Government
established beyond a reasonable doubt that Kellam had two prior
convictions to support her life sentences.
Kellam also asserts that her life sentences violate
the Eighth Amendment. We disagree. “Severe, mandatory
penalties may be cruel, but they are not unusual in the
constitutional sense, having been employed in various forms
throughout our Nation’s history.” Harmelin v. Michigan, 501
U.S. 957, 994-95 (1991). In United States v. Kratsas, 45 F.3d
63, 68 (4th Cir. 1995), this court held that “a mandatory
sentence of life imprisonment without release, as applied to a
repeat drug offender, did not run afoul of the Eighth
Amendment’s prohibition against cruel and unusual punishment.”
In Kratsas, we applied the three-part test of Solem v. Helm, 463
U.S. 277, 292 (1983), which examines: “(1) the gravity of the
offense and the harshness of the penalty, (2) the sentences
imposed on other criminals in the same jurisdiction, and (3) the
sentences imposed for commission of the same crime in other
jurisdictions.” Kratsas, 45 F.3d at 66.
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Under the first prong of the Solem test, it is clear
that Kellam’s offenses were serious. She was charged with being
part of a drug conspiracy that took place over the course of
four years, and was held accountable for between 500 grams and
1.5 kilograms. Moreover, Kellam was a repeat offender with five
prior drug convictions. As to the second and third prongs of
the Solem test, a life sentence without release for a major drug
violation is not disproportionate in comparison with other
sentences under the federal sentencing guidelines or sentences
imposed by states within the Fourth Circuit. See United
States v. D’Anjou, 16 F.3d 604, 613-14 (4th Cir. 1994).
Therefore, we conclude that Kellam’s life sentences are not
constitutionally disproportionate and that she has failed to
show an Eighth Amendment violation.
Moreover, Kellam’s life sentences are per se
reasonable. See United States v. Farrior, 535 F.3d 210, 224
(4th Cir. 2008) (“A statutorily required sentence . . . is per
se reasonable.”). Finally, Kellam’s request for a reduced
sentence under 18 U.S.C. § 3582(c)(2) (2006) fails because
Amendment 706 has no effect on a sentence imposed pursuant to a
statutory mandatory minimum. See United States v. Hood, 556
F.3d 226, 233 (4th Cir. 2009).
We do perceive an error in the district court’s
resentencing, however. In reducing Kellam’s sentence on Counts
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Seventeen and Eighteen to 235 months’ imprisonment, the district
court exceeded the scope of its mandate on remand from this
court. A resentencing hearing is generally conducted de novo
unless the court of appeals’ mandate specifically limits the
district court to certain issues. United States v.
Broughton-Jones, 71 F.3d 1143, 1149 n.4 (4th Cir. 1995) (remand
without limitation); see also United States v. Apple, 962 F.2d
335, 337 (4th Cir. 1992) (remand instruction limited to specific
potential error). Here, this court “vacate[d] the court’s
application of the enhancement provision and Kellam’s resulting
life sentence” and “remand[ed] that aspect of this appeal for
further proceedings, authorizing the court to permit the
prosecution to properly support — if it can — the prior
convictions alleged in the Information.” * Kellam, 568 F.3d at
145-46. This mandate was precise and unambiguous, and
instructed the district court to correct one specific error
only. Furthermore, none of the exceptions to the mandate rule
noted in United States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993),
are applicable in this case. Accordingly, the district court
*
To the extent the district court may have been misled by
our more general sentence closing the opinion, “we vacate
Kellam’s sentence . . . and remand for such further proceedings
as may be appropriate,” this language did not override our
prior, more specific direction.
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erred by conducting a de novo resentencing and reducing Kellam’s
sentence on Counts Seventeen and Eighteen.
We affirm the life sentences imposed by the district
court on Counts One and Eight. However, we vacate Kellam’s
sentence on Counts Seventeen and Eighteen and remand the case to
the district court with instructions to reinstate the original
360-month sentences on those counts. 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 IN PART,
VACATED IN PART,
AND REMANDED
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