UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4773
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSEPH TROY MCCONNELL,
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-15)
Submitted: April 22, 2009 Decided: May 8, 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Affirmed by unpublished per curiam opinion.
James B. Craven III, Durham, 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Unpublished opinions are not binding precedent in this circuit.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:
Joseph Troy McConnell 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 possession with intent to
distribute and distribution of 500 grams of cocaine on September
20, 2001, in violation of 21 U.S.C. § 841(a)(1), and was
sentenced to 330 months in prison. McConnell appealed,
challenging his convictions and sentence. We affirmed
McConnell’s convictions 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March 17, 2008) (unpublished).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 188-month
variant sentence on McConnell and McConnell timely appealed.
Counsel for McConnell has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), explaining that McConnell
contends that his 188-month variant sentence was “unreasonably
high.” Counsel has also filed a motion for leave to withdraw as
counsel of record in this case.
McConnell has filed a pro se supplemental brief
asserting that the district court: (i) improperly calculated his
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Guidelines range when it increased his offense level two levels,
pursuant to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1)
(2003); and (ii) violated the Sixth Amendment and the Supreme
Court’s holding in Apprendi v. New Jersey, 530 U.S. 466, 490
(2000) (“Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.”), when it refused to instruct the jury to
determine the amount of drugs that should be attributed to him,
as now required by United States v. Collins, 415 F.3d 304, 311-
15 (4th Cir. 2005) (holding that in order for a trial court to
determine which of the three graduated penalty subsections of 21
U.S.C. § 841(b) applies to defendants convicted of a § 846 drug
conspiracy, the jury must be instructed to determine the
threshold quantity of drugs attributable to each conspiracy
defendant on trial). The Government has declined to file a
responding brief. Finding no error, we affirm the district
court’s judgment.
In accordance with Anders, we have reviewed the
record in this case and have found no meritorious issues for
review. First, McConnell’s arguments pertaining to his
Guidelines range calculation and the district court’s failure to
instruct the jury regarding the amount of conspiracy drugs to be
attributed to him were either litigated by McConnell on his
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first appeal and were rejected, or could have been litigated but
were not. See, e.g., Davis, 270 F. App’x at 249-56 & n.16
(instructing the district court that “because we have found no
reversible Collins error, the statutory penalty scheme of
§ 841(b)(1)(A), with its attendant statutory minima and maxima,
remains the proper framework, in which to consider Appellants’
new sentences”). Accordingly, 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
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the issue, or (3) the prior decision was clearly
erroneous and would work manifest injustice.
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 McConnell’s claims do not
fall within any of the above-mentioned exceptions, he may not
pursue these challenges on this appeal.
We also reject McConnell’s suggestion that his variant
sentence is unreasonably high. 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-
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discretion standard as a sentence imposed within the applicable
guidelines range.”), cert. denied, 129 S. Ct. 1312 (2009).
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.
We find the district court’s 188-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, heard from McConnell’s
mother, allowed McConnell an opportunity to allocute, and
thoroughly considered the § 3553(a) factors before imposing
McConnell’s sentence. We conclude that the district court
adequately explained its rationale for imposing the variant
sentence and that the reasons relied upon by the district court
are valid considerations under § 3553(a) and justify the
sentence imposed. See 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. At this juncture, we also deny counsel’s motion for
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leave to withdraw as counsel of record. Rather, this court
requires that counsel inform McConnell in writing of his right
to petition the Supreme Court of the United States for further
review. If McConnell requests that a 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 McConnell. 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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