US v. Tanesha Bannister

Filing 920090406

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4765

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. TANESHA BANNISTER, Defendant ­ Appellant, and RANDY MARTIN; GEORGEAN MCCONNELL; ALISIA H. AKBAR; 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; LACARIA BROWN; LUTHER BRYAN, 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-40)

Submitted:

March 18, 2009

Decided:

April 6, 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Affirmed by unpublished per curiam opinion.

William Woodward Webb, THE EDMISTEN & WEBB LAW FIRM, Raleigh, North Carolina, for Appellant. Beth Drake, Mark C. Moore, Jane Barrett Taylor, Assistant United States Attorneys, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: Tanesha Bannister 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) Bannister (2006), and was sentenced her to life in prison. sentence.

appealed,

challenging

conviction

and

We affirmed Bannister's conviction and rejected claims relating to Bannister's sentence, but because she 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(4th Cir. March 17, 2008) (unpublished).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 variant remand, on the district and court imposed a 280-month appealed.

sentence

Bannister

Bannister

timely

Counsel for Bannister has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), alleging that he has found no meritorious issues for appeal but asserting that the district court range. may have improperly calculated Bannister's Guidelines

Bannister has filed a pro se supplemental brief, also

challenging the district court's calculation of her Guidelines range and asking this court to appoint her new counsel. Government has declined to file a responding brief. error, we affirm the district court's judgment. The

Finding no

3

In

accordance

with

Anders,

we

have

reviewed

the

record in this case and have found no meritorious issues for review. First, because Bannister's arguments pertaining to her

Guidelines range calculation were either litigated by Bannister on her first appeal and were rejected, or could have been

litigated but were not, the mandate rule precludes their present consideration by this court. 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."). "[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." Cir. 1999) United States v. Aramony, 166 F.3d 655, 661 (4th (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. 4

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). Because Bannister's Guidelines claims

do not fall within any of the above-mentioned exceptions, she may not challenge her Guidelines range calculation on this

appeal. 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). step in this court v. review requires no 526 the court to ensure The first that the

district United

committed Evans,

significant F.3d 155, 161

procedural (4th Cir.

error. 2008).

States

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.

While the court 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. is 2008) ("[A] sentence the that deviates from the

Guidelines

reviewed

under

same

deferential

abuse-of-

discretion standard as a sentence imposed within the applicable guidelines range."). Rather, in reviewing a sentence outside 5

the Guidelines range, we "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. We sentence to find be the district On court's remand, Id. variant court

280-month the

reasonable.

district

entertained counsel's argument regarding the weight that should be afforded the § 3553(a) factors, allowed Bannister an

opportunity to allocute, and thoroughly considered the § 3553(a) factors before imposing Bannister's sentence. the district court adequately explained We conclude that rationale for

its

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. Abu Ali, 528 F.3d at 260-61;

United States v. Pauley, 511 F.3d 468, 473-76 (4th Cir. 2007). Having reviewed the record in this case and finding no meritorious issues for review, we affirm the district court's judgment counsel. and deny Bannister's motion for appointment of new

This court requires that counsel inform Bannister in

writing of her right to petition the Supreme Court of the United States for further review. If 6 Bannister requests that a

petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move this court for leave to withdraw from representation. Counsel's motion must state We dispense with contentions the court are and

that a copy thereof was served on Bannister. oral argument because in the the facts and legal before

adequately

presented

materials

argument would not aid the decisional process. AFFIRMED

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