UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4770
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHNNY WILLIAM COOPER, JR., a/k/a Buck,
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-37)
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Affirmed by unpublished per curiam opinion.
S. Harrison Saunders, VI, REEVES AND SAUNDERS, LLC, 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Unpublished opinions are not binding precedent in this circuit.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:
Johnny William Cooper, Jr., 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 420 months in
prison. Cooper appealed, challenging his conviction and
sentence. We affirmed Cooper’s 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App’x 236 (4th Cir. March 17, 2008) (unpublished) (“Davis I”).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 300-month
variant sentence and Cooper timely appealed. Cooper asserts
that his variant sentence should be vacated because he argues
that enhancing his sentence based on his allegedly legal firearm
possession violated his Second Amendment right to bear arms, as
recently enunciated in District of Columbia v. Heller, 128 S.
Ct. 2783 (2008). Cooper asserts that Heller “dramatically
altered the jurisprudence related to an individual’s right to
bear arms” and, accordingly, a challenge to the firearm
enhancement is not foreclosed by the mandate rule. Cooper also
asserts that his variant sentence is unreasonable because it is
greater than necessary to comply with the 18 U.S.C. § 3553(a)
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(2006) factors. Finding no error, we affirm the district
court’s judgment.
We find that any arguments pertaining to the
calculation of Cooper’s Guidelines range are barred from this
court’s consideration under the mandate rule; Cooper either
previously raised his objections at his original sentencing and
on his first appeal, 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
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(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).
This court’s mandate in Davis I rejected Cooper’s
objections to his Guidelines range calculation and only directed
the district court to re-sentence Cooper under a non-mandatory
Guidelines regime. See Davis, 270 F. App’x at 248, 256 & n.16.
Because Cooper raises no claims that fall within any of the
exceptions to the law of the case doctrine, his challenges to
his Guidelines range are foreclosed by the mandate rule.
Cooper’s assertion that the legal landscape of Second
Amendment rights was significantly altered by Heller, thereby
excepting his Guidelines range challenge from the mandate rule,
is meritless. Admittedly, Heller held that the Second Amendment
secures an individual's right to keep handguns in the home for
self-protection. Heller, 128 S. Ct. at 2821-22. Heller also
emphasized, however, that the opinion should not “cast doubt on
longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying of
firearms in sensitive places such as schools and government
buildings, or laws imposing conditions and qualifications on the
commercial sale of arms.” Id. at 2816-17. Because the Supreme
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Court explicitly stated that it identified “these presumptively
lawful regulatory measures only as examples” and that its “list
[did] not purport to be exhaustive,” id. at 2817 n.26, Heller
had no effect on the Guidelines’ directive to enhance a
Guidelines range if a weapon was present during the commission
of the crime. See U.S. Guidelines Manual § 2D1.1(b)(1) & cmt.
n.3 (2008). Because Heller is not “controlling authority [that]
has since made a contrary decision of law applicable to the
issue,” Cooper’s objection to his weapons enhancement is not
excepted from the mandate rule.
We affirm the district court’s 300-month variant
sentence imposed on remand. After Booker, this court reviews a
district court’s sentence on appeal for reasonableness, using an
abuse of discretion standard of review. 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. United States v. 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
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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.
Cooper’s 300-month variant sentence is reasonable. On
remand, the district court heard counsel’s argument regarding
the weight that should be afforded the § 3553(a) factors,
allowed Cooper an opportunity to allocute, allowed Cooper’s
stepmother to speak on his behalf, and thoroughly considered the
§ 3553(a) factors before imposing Cooper’s 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
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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”). Although
Cooper argues that “[t]he goal of promoting respect for the law
and providing just punishment [would be] served with a sentence
of 121 months to 188 months,” we afford “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.
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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