UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4769
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DAVID KEITH MILES,
Defendant – Appellant,
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-33)
Submitted: March 25, 2009 Decided: April 24, 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Affirmed by unpublished per curiam opinion.
C. Rauch Wise, Greenwood, South 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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
David Keith Miles 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.
Miles appealed, challenging his conviction and sentence. We
affirmed Miles’ conviction and rejected claims relating to his
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2008) (unpublished).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 imposed a 360-month
variant sentence and Miles timely appealed. Miles asserts only
that the district court erred when it calculated his Guidelines
range using factors not found by a jury beyond a reasonable
doubt. Finding no error, we affirm the district court’s
judgment.
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, such
as improperly calculating the Guidelines range. United States
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v. Evans, 526 F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct.
476 (2008). Because the district court appropriately treated
the resultant Guidelines range as merely advisory, and since
Miles’ sentence was within the statutory maximum authorized by
the jury’s verdict (i.e., life in prison, see 28 U.S.C.
§ 841(b)(1)(A) (2006)), we find that the district court fully
complied with the Sixth Amendment and judicial precedent. See
Booker, 543 U.S. at 232-44 (holding that judge found sentence
enhancements mandatorily imposed under the Guidelines that
result in a sentence greater than that authorized by the jury
verdict or facts admitted by the defendant violate the Sixth
Amendment’s guarantee of the right to trial by jury); see also
Rita v. United States, 127 S. Ct. 2456, 2465-66 (2007)
(recognizing that its “Sixth Amendment cases do not
automatically forbid a sentencing court to take account of
factual matters not determined by a jury and to increase the
sentence in consequence”); United States v. Brooks, 524 F.3d
549, 561-62 (4th Cir.) (“[A] sentencing court is entitled to
find individualized drug quantities by a preponderance of the
evidence, as part of its calculation of an advisory Guidelines
range, . . . so long as its resulting sentence is within the
relevant statutory range.”), cert. denied, Witherspoon v. United
States, 129 S. Ct. 519 (2008).
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Moreover, to the extent that Miles attempts to
challenge the substance of the district court’s Guidelines range
calculation, these arguments are foreclosed by the mandate rule
as they were previously raised by Miles or could have been
raised but were not. 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 Miles’ summary assertions do
not fall within any of the above-mentioned exceptions, he may
not challenge his Guidelines range calculation on this appeal.
Accordingly, this court must next consider the
substantive reasonableness of the sentence imposed on remand,
taking into account the totality of the circumstances. Evans,
526 F.3d 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
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.
On remand, the district court considered Miles’
Guidelines range, heard counsel’s argument regarding the weight
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that should be afforded the § 3553(a) factors, allowed Miles an
opportunity to allocute, and thoroughly considered the § 3553(a)
factors before imposing Miles’ sentence. We find 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).
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
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