United States v. Ricky Everhart ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4298
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICKY EUGENE EVERHART, a/k/a Red,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:03-cr-00034-1)
Submitted: January 10, 2011 Decided: June 24, 2011
Before MOTZ and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mark P. Foster, Jr., LAW OFFICES OF MARK FOSTER, PC, Charlotte,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Adam Morris, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial in 2004, Ricky Eugene Everhart
was convicted of conspiracy to possess with intent to distribute
fifty grams or more of cocaine base, in violation of 21 U.S.C.A.
§§ 841, 846 (West 1999 & Supp. 2010), and two counts of
possession with intent to distribute fifty grams or more of
cocaine base, in violation of 21 U.S.C. § 841(a)(1). In his
presentence report, the probation officer attributed 508.5 grams
of cocaine base to Everhart. Everhart’s sentencing range was
360 months to life in prison. U.S. Sentencing Guidelines Manual
ch. 5, pt. A (sentencing table) (2003). The district court
sentenced Everhart to 360 months’ imprisonment. On appeal, this
court affirmed Everhart’s convictions, but vacated his sentence
and remanded the case for resentencing in accordance with United
States v. Booker, 543 U.S. 220 (2005). See United States v.
Everhart, 166 F. App’x 61 (4th Cir. 2006) (unpublished).
On remand, the district court again sentenced Everhart
to 360 months’ imprisonment. Everhart appealed, and this court
affirmed. See United States v. Everhart, 245 F. App’x 316 (4th
Cir. 2007) (unpublished), vacated, 552 U.S. 1292 (2008).
Everhart filed a petition for a writ of certiorari in the United
States Supreme Court, which vacated his sentence and remanded
his case to this court for further consideration in light of
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Kimbrough. 1 We, in turn, vacated Everhart’s sentence and
remanded the case to the district court. See United States v.
Everhart, 288 F. App’x 77 (4th Cir. 2008) (unpublished).
At that hearing, Everhart raised many of the same
arguments previously considered by the district court, but also
presented three new contentions: (1) that he was not subject to
the penalty provisions applicable to crack cocaine offenses
because the indictment had not charged, and the jury had not
found, that his conduct involved crack cocaine as opposed to
another form of cocaine base (“crack specificity argument”); (2)
that the drug quantity found by the probation officer was
invalid because there was no evidence to establish what portion
of that quantity reflected materials that needed to be separated
from the cocaine base prior to use (“usability argument”); and
(3) that, under the rule of lenity, he should be sentenced based
on the statutory and Guidelines provisions applicable to cocaine
offenses, because cocaine and cocaine base have the same
chemical composition (“rule of lenity argument”). The district
court rejected these arguments, but granted Everhart a three-
level downward variance due to the disparity in sentencing
between him and his co-defendant. The court sentenced Everhart
to 235 months’ imprisonment.
1
Kimbrough v. United States, 552 U.S. 85 (2007).
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Everhart appealed, but prior to adjudication by this
court, the parties filed a joint motion to remand the case to
allow the district court to further explain the reasons for its
sentence. On remand, the court again rejected the arguments
raised at the third sentencing hearing, again granted a downward
variance, and sentenced Everhart to 188 months’ imprisonment.
This appeal timely followed.
Everhart reasserts the usability, the rule of lenity,
and the crack specification arguments on appeal. The Government
argues this court is foreclosed from considering these issues,
however, because they could have been but were not raised in
Everhart’s first appeal. For the reasons that follow, we agree
with the Government and affirm the district court’s judgment.
The mandate rule “forecloses relitigation of issues
expressly or impliedly decided by the appellate court,” and
“litigation of issues decided by the district court but foregone
on appeal.” United States v. Bell, 5 F.3d 64, 66 (4th Cir.
1993). The rule further dictates that “any issue that could
have been but was not raised on appeal is waived and thus not
remanded.” Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007)
(internal quotation marks omitted).
The record clearly establishes that Everhart did not
raise the usability, rule of lenity, and crack specificity
arguments in his first direct appeal. Further, these arguments
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were available to Everhart at that time, as they do not rely on
a change in the law, newly discovered evidence, or purport to
correct a blatant error to prevent a serious injustice. See id.
at 467. Because Everhart could have raised these issues in his
first appeal but did not, and there is no exception that would
allow this court to consider these arguments at this juncture,
we hold that Everhart has waived these arguments. 2
Accordingly, we affirm the district court’s 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
2
To avoid application of the waiver doctrine, Everhart
asserts the Government has forfeited its position that these
arguments are waived by failing to raise that argument in the
district court. However, this misconstrues the Government’s
contention, which is that this court should not consider these
arguments because they were not raised in Everhart’s first
appeal, a fact that Everhart does not dispute. See Omni Outdoor
Adver., Inc. v. Columbia Outdoor Adver., Inc., 974 F.2d 502, 505
(4th Cir. 1992) (“The most rudimentary procedural efficiency
demands that litigants present all available arguments to an
appellate court on the first appeal.”). We are thus not
persuaded by this argument.
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