UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4790
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ARMAND A. HAMMOND,
Defendant – Appellant,
DONNA C. ADKINS; ALISIA H. AKBAR; CHERYL L. AMAKER; LACARIA
BROWN; LUTHER BRYAN; CHASE MANHATTAN MORTGAGE CORPORATION;
LAVACA COUNTY TEXAS; RANDY MARTIN; GEORGEAN MCCONNELL;
JOSEPH E. MCCONNELL; CHRISTOPHER M. MORRIS; FLORENCE
NOLLKAMPER; GUSSIE D. NOLLKAMPER; JOHN M. WARTHER; WELLS
FARGO HOME MORTGAGE, INCORPORATED,
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-22)
Submitted: April 27, 2009 Decided: May 15, 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Affirmed by unpublished per curiam opinion.
Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, Decatur,
Georgia, 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Unpublished opinions are not binding precedent in this circuit.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:
Armand A. Hammond 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 360 months in
prison. Hammond appealed, challenging his conviction and
sentence. We affirmed Hammond’s 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(4th Cir. March 17, 2008) (unpublished).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 300-month
variant sentence and Hammond timely appealed. Hammond asserts
that the district court erred when it determined that the
mandate rule barred it from reconsidering whether he incorrectly
received a 21 U.S.C. § 851 (2006) enhancement and that the
district court procedurally erred in imposing his variant
sentence. Finding no error, we affirm the district court’s
judgment.
We reject Hammond’s challenges to his § 851
enhancement because these challenges could have been litigated
on Hammond’s first appeal but were not. Accordingly, the
district court correctly refused to revisit the issue during
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Hammond’s remand proceeding. See 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 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.”).
“[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.
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). Hammond’s challenges do not fall
within any of the above-mentioned exceptions.
Although Hammond suggests that the district court
should have conducted a de novo hearing on remand, this
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assertion is meritless. In affirming Hammond’s convictions, we
explicitly rejected Hammond’s and his co-conspirators’ numerous
objections to their sentences. We nonetheless vacated most of
the appellants’ sentences, noting that we were doing so solely
because the sentences were imposed under a pre-Booker mandatory
Guidelines regime. See Davis, 270 F. App’x at 248-49.
Accordingly, this court’s mandate remanding Hammond’s case for
resentencing limited the district court to considering the
Guidelines range we upheld, along with the § 3553(a) factors,
Amendment 706, and the crack-to-powder cocaine sentencing
disparity, if applicable, to fashion an appropriate sentence.
See id. at 248-49, 256 n.16.
We also affirm the district court’s 300-month variant
sentence. 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.
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While the court on appeal 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.”), cert. denied, 129 S. Ct. 1312 (2009).
Rather, in reviewing a sentence outside the Guidelines range,
the court “consider[s] 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 Hammond’s
Guidelines range, heard counsel’s argument regarding the weight
that should be afforded the § 3553(a) factors, allowed Hammond
an opportunity to allocute, and thoroughly considered the
§ 3553(a) factors before imposing Hammond’s sentence. We find
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)
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and justify the sentence imposed. 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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