UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4774
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHRISTOPHER TOBY HAYES,
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-7)
Submitted: September 14, 2009 Decided: November 13, 2009
Before NIEMEYER and DUNCAN, Circuit Judges, 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Affirmed by unpublished per curiam opinion.
Joshua S. Kendrick, JOSHUA SNOW KENDRICK, P.C., Columbia, 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Unpublished opinions are not binding precedent in this circuit.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:
Christopher Toby Hayes 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.
Hayes appealed, challenging his conviction and sentence. We
affirmed Hayes’ conviction and rejected claims relating to his
Guidelines range calculation, but because he was sentenced under
the then-mandatory Sentencing Guidelines, vacated and remanded
for resentencing under 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March 17, 2008) (unpublished) (“Davis I”).
On remand, the district court imposed a 360-month
variant sentence and Hayes timely appealed. Hayes asserts that
the district court erred when it refused to conduct a de novo
resentencing on remand. Specifically, Hayes asserts that the
district court erroneously applied the mandate rule on remand to
bar his objections to his Guidelines range calculation because
he claims that this court’s mandate did not limit his
resentencing or address whether Hayes’ sentence was imposed in
violation of his Sixth Amendment rights. Finding no error, we
affirm the district court’s judgment.
We find that the district court correctly applied the
mandate rule to bar Hayes’ objections to his Guidelines range
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calculation; Hayes either previously raised his objections at
his original sentencing or could have raised them but did 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.”).
Moreover, “the 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).
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Contrary to Hayes’ assertions, this court’s order in
Davis I rejected Hayes’ objections to his Guidelines range
calculation and only directed the district court to resentence
Hayes under a non-mandatory Guidelines regime. See Davis,
270 F. App’x at 248, 256 & n.16. Unlike the court’s mandate
discussed in United States v. Fields, 552 F.3d 401, 403-04
(4th Cir. 2009) (holding that a previous mandate essentially
ordered a de novo resentencing where the court ordered the
district court “to apply the correct version of the Guidelines
manual”), Davis I did not authorize the district court to
re-calculate Hayes’ Guidelines range on remand. Because Hayes
raises no claims that fall within any of the exceptions to the
law of the case doctrine, his challenges to his Guidelines range
on remand were foreclosed by the mandate rule.
We nonetheless reject Hayes’ suggestion that the
district court violated the Sixth Amendment when it calculated
his Guidelines range based on facts not found by the jury.
Because the district court on remand appropriately treated
Hayes’ Guidelines range as advisory, and since Hayes’ 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)), 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
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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, 551 U.S. 338, 353 (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).
Although not explicitly challenged by Hayes, we have
reviewed Hayes’ 360-month sentence for reasonableness, using an
abuse of discretion standard of review. See Gall v. United
States, 552 U.S. 38, __, 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 or failing to
adequately explain the chosen sentence-including an explanation
for any deviation from the Guidelines range. United States v.
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Evans, 526 F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct.
476 (2008). The court must next consider the substantive
reasonableness of the sentence imposed on remand, taking into
account the totality of the circumstances. Id. at 161-62.
While the court presumes that a sentence within a
properly calculated Guidelines range is reasonable, see United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007), it may not
presume that a sentence outside the Guidelines range is
unreasonable. 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
must “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 heard counsel’s argument
regarding the weight that should be afforded the § 3553(a)
factors, allowed Hayes an opportunity to allocute and heard from
several individuals who spoke on Hayes’ behalf, and thoroughly
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considered the § 3553(a) factors before imposing Hayes’
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.
See United States v. Pauley, 511 F.3d 468, 473-76 (4th Cir.
2007); see also United States v. Carter, 564 F.3d 325, 330 (4th
Cir. 2009) (recognizing that the district court must “place on
the record an individualized assessment based on the particular
facts of the case before it” and that the “individualized
assessment . . . must provide a rationale tailored to the
particular case at hand and [be] adequate to permit meaningful
appellate review”).
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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