US v. Marquel Riley

Filing 920100104

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4775

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. MARQUEL DUSHUAN RILEY, a/k/a Mark Riley, 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-18)

Submitted:

December 16, 2009

Decided:

January 4, 2010

Before NIEMEYER and DUNCAN, Circuit Judges, 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Affirmed by unpublished per curiam opinion.

Lourie A. Salley, III, Lexington, South 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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: Marquel Dushuan Riley 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 272 months in prison. sentence. sentenced Riley appealed, challenging his conviction and

We affirmed Riley's conviction but because he was under the then-mandatory Sentencing Guidelines,

vacated and remanded for resentencing under 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App'x 236 (4th Cir. March 17, 2008) (unpublished) ("Davis I"). On remand, the district court imposed a 200-month

variant sentence and Riley timely appealed.

Riley asserts that

his variant sentence should be vacated because he argues that the district court erred when it enhanced his original

Guidelines range based on his possession of a dangerous weapon during the commission of the crime for which he was convicted. According to Riley, the Supreme Court's decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), requires a district court to exercise "greater scrutiny" before enhancing a sentence for lawful possession of a firearm, and "require[s] a nexus

between possession of a firearm and commission of the crime." Finding no error, we affirm the district court's judgment.

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We

find

that

any

arguments

pertaining

to

the

calculation of Riley's Guidelines range are barred from this court's consideration under the mandate rule; Riley either

previously raised his objections at his original sentencing and on his first appeal, or could have raised them but did not. Volvo Trademark Holding Aktiebolaget v. Clark Mach. See 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."). Moreover, posits that when a "the doctrine decides [of upon the a law rule of of the law, case] that

court

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 Cir. 1999) (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.

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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). This district court court's to mandate in Davis I only a directed the

resentence

Riley

under

non-mandatory

Guidelines regime.

See Davis, 270 F. App'x at 248, 256 & n.16.

Because Riley points to no circumstances that would allow this court to consider his Guidelines range calculation on this

appeal, Riley's challenge to his Guidelines range is foreclosed by the mandate rule. Riley's suggestion that Heller altered the legal

landscape, thereby excepting his Guidelines range challenge from the mandate rule, is meritless. Heller held that the Second

Amendment secures an individual's right to keep handguns in the home for self-protection. Heller, 128 S. Ct. at 2821-22.

Heller also emphasized, however, that the opinion should not "cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and

qualifications on the commercial sale of arms."

Id. at 2816-17.

Because the Supreme Court explicitly stated that it identified "these presumptively and that lawful its regulatory [did] measures not purport only to as be

examples"

"list 5

exhaustive,"

id.

at

2817

n.26,

Heller

had

no

effect

on

the

Guidelines' directive to enhance a Guidelines range if a weapon was present during the commission of a crime. See U.S.

Sentencing Guidelines Manual § 2D1.1(b)(1) & cmt. n.3 (2008). Because Heller is not "controlling authority [that] has since made a contrary decision of law applicable to the issue,"

Riley's objection to his weapons enhancement is not excepted from the mandate rule. 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

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