US v. Joseph McConnell

Filing 920090508

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4773

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. JOSEPH TROY MCCONNELL, Defendant ­ Appellant,

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-15)

Submitted:

April 22, 2009

Decided:

May 8, 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Affirmed by unpublished per curiam opinion.

James B. Craven III, Durham, 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Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM: Joseph Troy McConnell 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 possession with intent to

distribute and distribution of 500 grams of cocaine on September 20, 2001, in to violation 330 his of 21 in U.S.C. prison. and § 841(a)(1), McConnell We relating and was

sentenced challenging McConnell's

months

appealed, affirmed to his

convictions and

sentence. claims

convictions

rejected

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March 17, 2008) (unpublished).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 variant remand, on the district and court imposed a 188-month appealed.

sentence

McConnell

McConnell

timely

Counsel for McConnell has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), explaining that McConnell

contends that his 188-month variant sentence was "unreasonably high." Counsel has also filed a motion for leave to withdraw as

counsel of record in this case. McConnell has filed a pro se supplemental brief

asserting that the district court: (i) improperly calculated his 3

Guidelines range when it increased his offense level two levels, pursuant to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1)

(2003); and (ii) violated the Sixth Amendment and the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."), when it refused to instruct the jury to determine the amount of drugs that should be attributed to him, as now required by United States v. Collins, 415 F.3d 304, 31115 (4th Cir. 2005) (holding that in order for a trial court to determine which of the three graduated penalty subsections of 21 U.S.C. § 841(b) applies to defendants convicted of a § 846 drug conspiracy, threshold the jury of must drugs be instructed to to determine each the

quantity

attributable

conspiracy

defendant on trial). responding brief.

The Government has declined to file a no error, we affirm the district

Finding

court's judgment. In accordance with Anders, we have reviewed the

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

Guidelines range calculation and the district court's failure to instruct the jury regarding the amount of conspiracy drugs to be attributed to him were either 4 litigated by McConnell on his

first appeal and were rejected, or could have been litigated but were not. See, e.g., Davis, 270 F. App'x at 249-56 & n.16

(instructing the district court that "because we have found no reversible Collins error, the statutory penalty scheme of

§ 841(b)(1)(A), with its attendant statutory minima and maxima, remains the proper framework, in which to consider Appellants' new sentences"). present Holding Accordingly, the mandate rule precludes their by v. this Clark court. Mach. Co., See 510 Volvo F.3d Trademark 474, 481

consideration Aktiebolaget

(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." United States v. Aramony, 166 F.3d 655, 661 (4th The

Cir. 1999) (internal citation and quotation marks omitted). law of the case must be applied: in all subsequent proceedings in the the trial court or on a later appeal (1) a subsequent trial produces different evidence, (2) controlling since made a contrary decision of law 5 same case in . . . unless: substantially authority has applicable to

the issue, or (3) the prior decision was erroneous and would work manifest injustice.

clearly

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 McConnell's claims do not

fall within any of the above-mentioned exceptions, he may not pursue these challenges on this appeal. We also reject McConnell's suggestion that his variant sentence reviewed is for unreasonably high. After using an Booker, abuse a of sentence is

reasonableness,

discretion

standard of review. (2007). ensure

Gall v. United States, 128 S. Ct. 586, 597

The first step in this review requires the court to that the district court committed no significant

procedural error. (4th Cir. 2008).

United States v. Evans, 526 F.3d 155, 161 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-

6

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, 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. We sentence to find be the Id. court's remand, 188-month the variant court

district On

reasonable.

district

entertained counsel's argument regarding the weight that should be afforded the § 3553(a) McConnell the We its factors, an § heard from to McConnell's and

mother,

allowed

opportunity

allocute, before

thoroughly McConnell's adequately

considered sentence. explained

3553(a)

factors that for the

imposing court

conclude

district the

rationale

imposing

variant

sentence and that the reasons relied upon by the district court are valid considerations under § 3553(a) and justify the

sentence imposed.

See 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. At this juncture, we also deny counsel's motion for 7

leave to withdraw as counsel of record.

Rather, this court

requires that counsel inform McConnell in writing of his right to petition the Supreme Court of the United States for further review. If McConnell 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 that a copy thereof We dispense with oral argument because

was served on McConnell.

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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