US v. Darren White

Filing 920090406

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4767

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. DARREN WHITE, a/k/a Doctor, a/k/a Coolie, 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-13)

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Affirmed by unpublished per curiam opinion.

Mary J. Darrow, Raleigh, North 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Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM: Darren White 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. White

appealed, challenging his conviction and sentence. White's conviction and rejected claims relating

We affirmed to White's

sentence, but because he 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 See United States v. Davis, 270 F. App'x 236 (4th Cir. March 17, 2008) (unpublished).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 remand, the district court sentenced White to 360 months in prison. White timely appealed. White now claims that

the district court erred when it: (i) enhanced his Guidelines range by two levels based on possession of a dangerous weapon, in accordance with U.S. Sentencing Guidelines Manual ("USSG") § 2D1.1(b)(1) (2002); (ii) increased his offense level by three levels based on his managerial role in the conspiracy, pursuant to USSG § 3B1.1 (2002); and (iii) used the pre-amended cocaine base Guidelines to determine his Guidelines range because those Guidelines overstated his culpability. affirm. Finding no error, we

3

We

find

that

White's

challenges

to

his

Guidelines

range calculation are barred by the law-of-the-case doctrine and that none of the exceptions to that doctrine apply. 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."); see also United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (discussing law-of-the-case doctrine and the exceptions thereto). 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). The first

step in this review requires us to ensure that the district court committed no significant procedural error, such as

improperly calculating the Guidelines range. Evans, 526 F.3d 155, 161 (4th Cir. 2008).

United States v.

Assuming the district court committed no significant procedural error, we then consider the substantive

reasonableness of the sentence imposed, taking into account the totality of the circumstances. presume that a sentence Id. at 161-62. the While we may range is

within 4

Guidelines

reasonable,

we

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. 2008) ("[A] sentence that deviates from the Guidelines is reviewed under the same imposed deferential within abuse-of-discretion applicable standard as a

sentence

the

guidelines

range.").

Rather, in reviewing a sentence outside 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." 128 S. Ct. at 597. Gall,

Even if this court would have imposed a

different sentence, this fact alone will not justify vacatur of the district court's sentence. Because reveals variant no our review or by Id. of the proceedings error, we on remand the

procedural

substantive the

affirm At

sentence the

imposed

district heard be

court.

White's argument

resentencing, regarding factors, thoroughly White's the

district that

court should

counsel's the

weight

afforded to

§ 3553(a) and

afforded

White the We its

an

opportunity

allocute, before

considered

§ 3553(a) conclude rationale

factors the

imposing court variant

sentence. explained

that for

district the

adequately

imposing

sentence, that the sentence was selected pursuant to a reasoned process in accordance with law, and that the reasons relied upon 5

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). Based on the foregoing, we affirm the district court's judgment. legal before We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional

contentions the court

would

process. AFFIRMED

6