UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4427
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNY LEE GORE, a/k/a Manager,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (4:01-cr-00627-CWH-9)
Submitted: April 16, 2010 Decided: May 7, 2010
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Johnny Lee Gore, Appellant Pro Se. Marvin Jennings Caughman,
Assistant United States Attorney, Columbia, South Carolina; Rose
Mary Sheppard Parham, Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Johnny Lee Gore of conspiracy to
possess with intent to distribute cocaine, in violation of 21
U.S.C. § 841(a)(1) (2006). The district court initially
sentenced Gore to 360 months’ imprisonment and this court
affirmed. United States v. Gore, 102 F. App’x 292 (4th Cir.
2004) (Nos. 02-4566/4908 & 03-4084). Following its landmark
decision in United States v. Booker, 543 U.S. 220 (2005), the
Supreme Court vacated the judgment and remanded the case to this
court and we remanded to the district court for resentencing in
light of Booker. United States v. Gore, 299 F. App’x 237 (4th
Cir. 2008) (No. 02-4908), as amended (Feb. 12, 2009). The
district court resentenced Gore to 235 months in prison. Gore
timely appealed.
Gore has elected to appeal pro se and asserts numerous
claims on appeal. First, he contends that the district court
erred by declining to conduct a de novo resentencing. However,
the purpose of our remand was to enable the district court to
resentence Gore in light of Booker; that is, to treat the
federal sentencing guidelines as advisory rather than mandatory.
Cf. United States v. Worley, 453 F.3d 706, 709 (6th Cir. 2006).
Thus, it was not our intention that the district court should
conduct a de novo resentencing.
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Gore also challenges the drug quantity attributed to
him for sentencing purposes, disputes his criminal history
category, objects to the district court’s refusal to give him a
reduction in offense level for acceptance of responsibility, and
claims the Government withheld exculpatory evidence. These
issues were or could have been raised in the earlier
proceedings. We therefore find that the claims are barred by
the law-of-the-case doctrine and that none of the exceptions to
this doctrine apply. See United States v. Aramony, 166 F.3d
655, 661 (4th Cir. 1999) (discussing doctrine and exceptions
thereto); 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.”); United States v. Bell, 5 F.3d 64, 66 (4th
Cir. 1993) (stating that mandate rule “forecloses relitigation
of issues expressly or impliedly decided by the district court
but foregone on appeal”).
Finally, Gore maintains that the district court erred
by failing to grant him a downward departure under U.S.
Sentencing Guidelines Manual § 5K2.23 (2008), which was not
available at the time of Gore’s first sentencing. Because we
find that the district court did not mistakenly believe that it
lacked the authority to depart, its decision not to depart is
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not reviewable. United States v. Brewer, 520 F.3d 367, 371 (4th
Cir. 2008).
Accordingly, we affirm the district court’s judgment.
We grant Gore’s motions to file a supplemental brief and to
withdraw his motion to hold his appeal in abeyance and deny as
moot his request for mandamus relief seeking to compel the
district court to issue an amended criminal judgment to correct
a clerical error. 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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