United States v. Wilson

326 F. App'x 221

Opinion

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

2 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App’x 236 (4th Cir. March 17, 2008) (unpublished).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

3 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

4 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.

5 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

6 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