UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4873
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICK BARTON, SR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (1:02-cr-00080-jpj)
Submitted: January 10, 2007 Decided: February 5, 2007
Before WILLIAMS, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
A. Benton Chafin, Jr., CHAFIN LAW FIRM, P.C., Lebanon, Virginia,
for Appellant. John L. Brownlee, United States Attorney, Jennifer
R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In 2003, Rick Barton, Sr., was convicted by a jury of
conspiracy to engage in distribution, in violation of 21 U.S.C.
§ 846 (2000) (Count One); one count of distribution and possession
with intent to distribute oxycodone and cocaine, in violation of 21
U.S.C. § 841(a)(1) (2000) (Count Two); and four counts of
possession of a firearm in furtherance of a drug trafficking
offense, in violation of 18 U.S.C.A. § 924(c) (West 2000 & Supp.
2006) (Counts Three through Six). See United States v. Barton, 116
F. App’x 460, 462 (4th Cir. 2004) (No. 03-4896). The district
court, overruling Barton’s objections, imposed a four-level
sentence enhancement under U.S. Sentencing Guidelines Manual (USSG)
§ 3B1.1(a) (2002), on the ground that Barton was a leader or
organizer of a criminal activity involving five or more
participants. Barton was sentenced to 1170 months of imprisonment:
concurrent 210-month terms for Counts One and Two, a consecutive
sixty-month sentence for Count Three, and 300 months each for
Counts Four, Five, and Six, to run consecutively. Barton, 116 F.
App’x at 462.
On appeal, Barton alleged that (1) the jury was coerced
by an instruction directing further deliberation when it returned
without a unanimous jury verdict; (2) because he was convicted of
only one substantive drug offense, he could not be convicted of
multiple firearms counts; and (3) the district court erred in
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subjecting Barton to a leadership enhancement. We rejected all
three claims and affirmed the convictions and sentence. The
Supreme Court granted certiorari, vacated the judgment of this
court, and remanded the case “for further consideration in light of
United States v. Booker, 543 U.S. 220 (2005).” Barton v. United
States, 126 S. Ct. 39 (2005).
On remand to this court, the parties filed supplemental
briefs. Barton alleged that the four-level enhancement imposed by
the district court under USSG § 3B1.1 violated his Sixth Amendment
rights. He also argued again that the district court erred in
allowing four § 924(c)(1) convictions based on one underlying
offense. The Government conceded plain error under Booker, but
asserted that Barton’s second argument was beyond the scope of the
remand. We affirmed Barton’s convictions for the reasons stated in
the initial decision, rejecting Barton’s challenge to the § 924(c)
convictions “for the reasons stated in our original opinion.”
United States v. Barton, 178 F. App’x 291, 292 & n.1 (4th Cir.
2006) (No. 03-4896). Finding plain error in Barton’s sentence
under Booker, we vacated the sentence and remanded for
resentencing. Id. at 293.
At resentencing, counsel for Barton argued for a variance
sentence. He also asserted that the multiple § 924(c) convictions
violated the Double Jeopardy Clause. The district court declined
to address the firearms issue and adopted the findings in the
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original presentence report as its findings of fact. The court
imposed concurrent sixty-month sentences for Counts One and Two,
and reimposed the statutorily-mandated minimum sentences for Counts
Three through Six. Barton noted his appeal.
On appeal, Barton does not contest the sentence imposed
by the district court. He raises only his challenge to the
multiple firearms convictions, although he acknowledges that we
have already rejected the claim. This court’s prior holding on the
issue is the law of the case, and Barton may not relitigate the
issue in this appeal. See United States v. Aramony, 166 F.3d 655,
661 (4th Cir. 1999).
We affirm the sentence imposed by the district court. 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
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