UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 00-4746
LENZIE LEE MURRAY, JR., a/k/a
Pepsi,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-96-157)
Submitted: April 30, 2001
Decided: June 11, 2001
Before WIDENER, WILKINS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mark J. Petrovich, MARTIN, ARIF, PETROVICH & WALSH,
Springfield, Virginia, for Appellant. Helen F. Fahey, United States
Attorney, Thomas M. Hollenhorst, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
2 UNITED STATES v. MURRAY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Lenzie Lee Murray, Jr., pled guilty in 1996 to conspiracy to pos-
sess one kilogram or more of heroin with intent to distribute, 21
U.S.C. § 846 (1994). He was sentenced to a term of 292 months
imprisonment. Murray appealed the district court’s denial of his
motion to withdraw his guilty plea and also the three-level adjustment
he received under the sentencing guidelines for being a manager or
supervisor in the conspiracy. The government recommended resen-
tencing because it appeared that the district court might have relied
on information protected under the cooperation provision in Murray’s
plea agreement in determining that the role adjustment was warranted.
U.S. Sentencing Guidelines Manual § 1B1.8 (1995). We affirmed the
conviction but remanded for resentencing with directions that the dis-
trict court reconsider Murray’s role in the conspiracy.1 United States
v. Murray, No. 96-4864 (4th Cir. Feb. 23, 1998) (unpublished).
Murray also characterized as an error the district court’s two-level
enhancement under USSG § 2D1.1(b)(1) for possession of a firearm
during the offense, but did not raise the enhancement as an issue or
make any argument concerning it. The opinion addressed the
enhancement in a footnote, finding that, because the district court had
based its determination on the Statement of Facts incorporated into
Murray’s plea agreement and reproduced in the presentence report
(information that was not protected), the ruling need not be reexamined.2
1
Murray notes here that the opinion stated that he contested only the
role adjustment at sentencing. Although inaccurate, this statement did not
affect the outcome of the appeal.
2
In the Statement of Facts, Murray agreed that the government could
prove that, in December 1995, he possessed a handgun that was used and
possessed in connection with the conspiracy. The gun was hidden in a
compartment in his car, and was discovered after his arrest in December
1995. The arrest occurred while the charged conspiracy was ongoing;
UNITED STATES v. MURRAY 3
On remand, the government withdrew its recommendation for a
role adjustment, and the district court eliminated it, imposing a sen-
tence of 210 months imprisonment. Murray again contested the
weapon enhancement. The district court found that this court had
already ruled on the issue, and that the enhancement was warranted
based on the Statement of Facts attached to the plea agreement. No
appeal was filed from the resentencing, but two years later the district
court granted Murray relief on his motion under 28 U.S.C.A. § 2255
(West Supp. 2000), in which he alleged that his attorney had been
ineffective in failing to note an appeal. The district court vacated the
prior judgment and resentenced Murray at a hearing where he
appeared with new counsel and again raised the issue of the weapon
enhancement. The district court stated that it was satisfied that this
court had ruled on the issue, and that further litigation of it was fore-
closed. The court reimposed the 210-month sentence. Murray appeals.
The government asserts that the waiver of appeal rights in Mur-
ray’s plea agreement bars this appeal. However, the government
failed to assert the waiver in Murray’s first appeal, and thus waived
the waiver. United States v. Metzger, 3 F.3d 756, 757 (4th Cir. 1993).
We need not determine whether the government may raise it to bar
a second appeal because the issue on which Murray seeks review was
not properly before the district court at the resentencing.
A resentencing on remand is de novo unless it is specifically lim-
ited by the mandate of the court of appeals. United States v.
Broughton-Jones, 71 F.3d 1143, 1149 n.4 (4th Cir. 1995) (following
United States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993) (applying mandate
rule)). An issue that has been expressly or impliedly decided by the
appeals court may not be relitigated on remand unless (1) the control-
Count One charged that the conspiracy continued from 1988 to April
1996. Evidence that the defendant possessed a weapon during the com-
mission of the offense is sufficient to warrant an enhancement under
§ 2D1.1(b)(1). United States v. Apple, 962 F.2d 335, 338 (4th Cir. 1992).
Murray entered his guilty plea after acknowledging that the information
contained in the Statement of Facts was correct. The plea agreement pre-
cluded the use of any information Murray provided thereafter, pursuant
to the agreement, but did not preclude the district court from considering
information contained in the Statement of Facts to enhance Murray’s
sentence.
4 UNITED STATES v. MURRAY
ling legal authority has changed dramatically, (2) significant new evi-
dence not available earlier has been obtained, or (3) a blatant error in
the prior decision will result in serious injustice unless corrected. Bell,
5 F.3d at 67. The 1998 opinion of this court that remanded Murray’s
case for resentencing found (albeit in a footnote because the issue was
not directly presented) that the district court’s finding concerning the
weapon enhancement was based on the Statement of Facts attached
to the plea agreement and that, to the extent that the issue was before
the court, the district court’s decision need not be disturbed. The opin-
ion specified that the case was being remanded for reconsideration of
Murray’s role in the conspiracy. This language limited the scope of
the resentencing to that issue. Murray was thus foreclosed from reliti-
gating the weapon enhancement at the first resentencing. Bell, 5 F.3d
at 66.
At the April 1998 resentencing, the district court afforded Murray
the relief he sought concerning his role in the conspiracy. When Mur-
ray raised the issue of the weapon enhancement, the district court
found that this court had already ruled on the issue. After the district
court granted relief on Murray’s § 2255 motion in August 2000, Mur-
ray was entitled only to re-entry of the judgment so that he could file
a timely appeal from the sentence imposed in April 1998.3 See
United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993) (vacating judg-
ment and remanding for entry of "new judgment from which an
appeal can be taken").
Having previously determined that the district court did not clearly
err in making the weapon adjustment, we affirm the sentence. We dis-
pense 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
3
Because Murray had convinced the district court to remove the role
adjustment, the only issue properly before the district court on remand,
there was nothing for him to appeal.