UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4767
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DARREN WHITE, a/k/a Doctor, a/k/a Coolie,
Defendant – Appellant,
and
RANDY MARTIN; LUTHER BRYAN; ALISIA H. AKBAR; LACARIA BROWN;
GEORGEAN MCCONNELL; GUSSIE D. NOLLKAMPER; FLORENCE
NOLLKAMPER; CHRISTOPHER M. MORRIS; LAVACA COUNTY TEXAS;
JOSEPH E. MCCONNELL; JOHN M. WARTHER; WELLS FARGO HOME
MORTGAGE, INCORPORATED; CHERYL L. AMAKER; DONNA C. ADKINS;
CHASE MANHATTAN MORTGAGE CORPORATION,
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-13)
Submitted: March 18, 2009 Decided: April 6, 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Affirmed by unpublished per curiam opinion.
Mary J. Darrow, Raleigh, North Carolina, for Appellant. W.
Walter Wilkins, United States Attorney, Jane B. Taylor,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Darren White 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 life in prison. White
appealed, challenging his conviction and sentence. We affirmed
White’s conviction and rejected claims relating to White’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2008) (unpublished).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 sentenced White to 360
months in prison. White timely appealed. White now claims that
the district court erred when it: (i) enhanced his Guidelines
range by two levels based on possession of a dangerous weapon,
in accordance with U.S. Sentencing Guidelines Manual (“USSG”)
§ 2D1.1(b)(1) (2002); (ii) increased his offense level by three
levels based on his managerial role in the conspiracy, pursuant
to USSG § 3B1.1 (2002); and (iii) used the pre-amended cocaine
base Guidelines to determine his Guidelines range because those
Guidelines overstated his culpability. Finding no error, we
affirm.
3
We find that White’s challenges to his Guidelines
range calculation are barred by the law-of-the-case doctrine and
that none of the exceptions to that doctrine apply. 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.”); see also United
States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (discussing
law-of-the-case doctrine and the exceptions thereto).
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 us to ensure that the district
court committed no significant procedural error, such as
improperly calculating the Guidelines range. United States v.
Evans, 526 F.3d 155, 161 (4th Cir. 2008).
Assuming the district court committed no significant
procedural error, we then consider the substantive
reasonableness of the sentence imposed, taking into account the
totality of the circumstances. Id. at 161-62. While we may
presume that a sentence within the Guidelines range is
4
reasonable, we 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.”).
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.
Because our review of the proceedings on remand
reveals no procedural or substantive error, we affirm the
variant sentence imposed by the district court. At White’s
resentencing, the district court heard counsel’s argument
regarding the weight that should be afforded the § 3553(a)
factors, afforded White an opportunity to allocute, and
thoroughly considered the § 3553(a) factors before imposing
White’s sentence. We conclude that the district court
adequately explained its rationale for imposing the variant
sentence, that the sentence was selected pursuant to a reasoned
process in accordance with law, and that the reasons relied upon
5
by the district court are plausible and justify the sentence
imposed. Abu Ali, 528 F.3d at 260-61; United States v. Pauley,
511 F.3d 468, 473-76 (4th Cir. 2007).
Based on the foregoing, we affirm the district court’s
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
6