United States v. John Foster

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4619

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JOHN JOEL FOSTER, a/k/a Jack Foster,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones,
District Judge. (2:09-cr-00017-JPJ-PMS-1)

Submitted: May 3, 2013 Decided: May 13, 2013

Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Rhonda Lee Overstreet, OVERSTREET SLOAN, PLLC, Bedford,
Virginia, for Appellant. Timothy J. Heaphy, United States
Attorney, Ashley B. Neese, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

After the district court concluded that two of John

Joel Foster’s three previous felony convictions were not violent

felonies for purposes of the Armed Career Criminal Act (“ACCA”),

18 U.S.C. § 924(e)(1) (2006), the Government appealed. We

agreed with the Government, ruling that Foster’s prior

convictions “necessarily . . . qualify as violent felonies under

the ACCA,” and remanded the case for resentencing. United

States v. Foster, 662 F.3d 291, 297 (4th Cir. 2011). * The

Supreme Court denied certiorari. Foster v. United States, 133

S. Ct. 207 (2012).

On remand, the district court sentenced Foster to the

fifteen-year mandatory minimum required by the ACCA. Foster now

appeals his fifteen-year sentence, alleging that both we and the

district court erred in concluding, under the modified

categorical approach, that his prior convictions were violent

felonies for purposes of the ACCA.

As the Government observes, the mandate rule precluded

the district court from addressing the argument that Foster now

raises. The mandate rule is “a specific application of the law

*
Foster petitioned for rehearing en banc but narrowly
failed to persuade a majority of this court’s active judges to
vote in favor of rehearing. His petition was, as a result,
denied. United States v. Foster, 674 F.3d 391, 391 (4th Cir.
2012).

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of the case doctrine” to cases on remand following an

appeal. Volvo Trademark Holding Aktiebolaget v. Clark Mach.

Co., 510 F.3d 474, 481 (4th Cir. 2007). It “compels compliance

on remand with the dictates of a superior court and forecloses

relitigation of issues expressly or impliedly decided by the

appellate court.” United States v. Bell, 5 F.3d 64, 66 (4th

Cir. 1993). Here, of course, we ruled that Foster’s prior

convictions were “necessarily” violent felonies and that the

ACCA therefore applied. Foster, 662 F.3d at 297. Because the

proper characterization of Foster’s previous convictions was not

an issue remanded to the district court, the district court had

no authority to revisit that determination. Foster’s current

appellate arguments therefore attack the district court for a

ruling that it has not made.

To the extent that Foster urges us to revisit our

earlier decision, the panel’s holding “became, for all practical

purposes, the law of the case” when the Supreme Court denied

certiorari. United States v. Fulks, 683 F.3d 512, 521 (4th Cir.

2012), petition for cert. filed, U.S.L.W. (U.S. Nov. 21,

2012) (Nos. 12-8364, 12A248). And “as a practical matter, once

the decision of an appellate court establishes the law of the

case, it must be followed in all subsequent proceedings in the

same case in the trial court or on a later appeal.” United

States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (internal

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quotation marks omitted) (emphasis added). In other words, “the

doctrine of law of the case restricts a court to legal decisions

it has made on the same issues in the same case.” MacDonald v.

Moose, 710 F.3d 154, 161 n.10 (4th Cir. 2013).

We are not persuaded that exceptional circumstances

warrant sidestepping the usual operation of the doctrine in this

case. See United States v. Pileggi, 703 F.3d 675, 682-83 (4th

Cir. 2013); Aramony, 166 F.3d at 661. See also Sejman v.

Warner-Lambert Co., 845 F.2d 66, 69 (4th Cir. 1988) (“Clearly,

courts could not perform their duties satisfactorily and

efficiently if a question once considered and decided were to be

litigated anew in the same case upon any and every subsequent

appeal.” (internal quotation marks and ellipses omitted)).

Accordingly, we affirm the judgment of the district

court. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional

process.

AFFIRMED