UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4765
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TANESHA BANNISTER,
Defendant – Appellant,
and
RANDY MARTIN; GEORGEAN MCCONNELL; ALISIA H. AKBAR; 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;
LACARIA BROWN; LUTHER BRYAN,
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-40)
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Affirmed by unpublished per curiam opinion.
William Woodward Webb, THE EDMISTEN & WEBB LAW FIRM, Raleigh,
North 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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Tanesha Bannister 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) (2006), and was sentenced to life in prison.
Bannister appealed, challenging her conviction and sentence.
We affirmed Bannister’s conviction and rejected claims relating
to Bannister’s sentence, but because she 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(4th Cir. March 17, 2008) (unpublished).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 280-month
variant sentence on Bannister and Bannister timely appealed.
Counsel for Bannister 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 the district
court may have improperly calculated Bannister’s Guidelines
range. Bannister has filed a pro se supplemental brief, also
challenging the district court’s calculation of her Guidelines
range and asking this court to appoint her new counsel. The
Government has declined to file a responding brief. Finding no
error, we affirm the district court’s judgment.
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In accordance with Anders, we have reviewed the
record in this case and have found no meritorious issues for
review. First, because Bannister’s arguments pertaining to her
Guidelines range calculation were either litigated by Bannister
on her 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
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.
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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 Bannister’s Guidelines claims
do not fall within any of the above-mentioned exceptions, she
may not challenge her Guidelines range calculation on this
appeal.
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.
While the 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.”). Rather, in reviewing a sentence outside
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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 280-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, allowed Bannister an
opportunity to allocute, and thoroughly considered the § 3553(a)
factors before imposing Bannister’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 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).
Having reviewed the record in this case and finding no
meritorious issues for review, we affirm the district court’s
judgment and deny Bannister’s motion for appointment of new
counsel. This court requires that counsel inform Bannister in
writing of her right to petition the Supreme Court of the United
States for further review. If Bannister requests that a
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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 Bannister. 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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