UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4365
JOE BENNETT SMITH, III,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CR-99-10)
Submitted: December 4, 2002
Decided: December 20, 2002
Before WILKINS and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
COUNSEL
Robert F. Rider, ROBERT F. RIDER, P.L.C., Roanoke, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Joseph W.H.
Mott, Assistant United States Attorney, Roanoke, Virginia, for Appel-
lee.
2 UNITED STATES v. SMITH
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Joe Bennett Smith, III, pled guilty to conspiracy to manufacture
and distribute marijuana. After his initial appeal, we remanded the
case for "re-sentencing and imposition of a sentence of up to 120
months." On remand, Smith was sentenced to 100 months imprison-
ment. He now appeals, arguing that his conviction violated the Dou-
ble Jeopardy Clause and that his sentence was improperly enhanced
based on a prior conviction. We dismiss the appeal.
Although Smith sought to raise his double jeopardy claim in a sup-
plemental brief during his first appeal, we found his argument
untimely raised and did not consider it. Under the mandate rule, the
district court was "bound to carry the mandate of the upper court into
execution and could not consider the questions which the mandate
laid at rest." Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 168 (1939).
"[W]here an issue was ripe for review at the time of an initial appeal
but was nonetheless foregone, the mandate rule generally prohibits
the district court from reopening the issue on remand unless the man-
date can reasonably be understood as permitting it to do so." United
States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001); see also United
States v. Aramony, 166 F.3d 655, 662 (4th Cir. 1999) (same). A dis-
trict court may consider issues foreclosed by the mandate in the fol-
lowing "extraordinary circumstances": (1) change in controlling legal
authority, (2) significant new evidence, or (3) a blatant error resulting
in serious injustice. United States v. Bell, 5 F.3d 64, 67 (4th Cir.
1993).
Here, our mandate remanded for resentencing and, thus, impliedly
affirmed the conviction. Accordingly, Smith is not entitled to review
of this claim unless he can show extraordinary circumstances, which
he has failed to do. He makes no effort to show a legal or factual
change. While he argues that he is suffering from a serious injustice,
UNITED STATES v. SMITH 3
the present record does not support his contention. In any event,
Smith presents no reason for his failure to timely raise the issue prior
to his plea or on his first appeal. Accordingly, because Smith has
failed to show "extraordinary circumstances," the district court prop-
erly followed the terms of our mandate and declined to consider
Smith’s claim.
Smith next seeks to challenge the statutory enhancement of his sen-
tence based on his prior conviction. However, in his plea agreement,
Smith waived his right to appeal his sentence. Although he reserved
the right to challenge certain rulings, the enhancement was not one of
the claims reserved.
On appeal, Smith does not challenge the validity of his waiver.
Instead, he argues that his sentence exceeds the statutory maximum.
See United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992) (per-
miting appeal of sentence imposed in excess of the statutory maxi-
mum, despite general waiver of appeal). Because his indictment did
not charge a specific drug quantity, in the absence of a prior convic-
tion, Smith would have faced a five year maximum sentence. See 21
U.S.C. § 841(b)(1)(D) (West Supp. 2002). Thus, he asserts that his
100-month sentence exceeds the maximum statutory sentence and
permits him to raise his claim on appeal.
However, Smith signed a plea agreement stating that he had a prior
conviction and calculating his maximum exposure based on that prior
conviction. The agreement reserved certain issues for appeal, but the
propriety of the enhancement was not one of them. Further, the prior
conviction and its effect on applicable statutory minimum sentences
were discussed without objection at Smith’s guilty plea hearing. In
addition, the Government properly served notice under 21 U.S.C.
§ 851 (2000), which allowed the district court to sentence Smith to a
maximum of ten years under the recidivist portion of § 841(b)(1)(D).*
*Smith contends that the district court’s failure to inquire whether he
affirmed or denied the conviction, as required under § 841(b), permits an
appeal. However, any error was harmless, as Smith does not contest that
"he has been previously convicted as alleged in the information." 21
U.S.C. § 851(b). His arguments attack the use rather than the fact of his
prior conviction.
4 UNITED STATES v. SMITH
See United States v. Novey, 922 F.2d 624, 628-29 (10th Cir. 1991)
(filing § 851 notice alters statutory maximum). Thus, we find that
Smith has waived appeal of this issue.
Based on the foregoing, we dismiss Smith’s appeal. We dispense
with oral argument, because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED