US v. Jerome Foster

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:07-cr-00711-HFF-25. Copies to all parties and the district court/agency. [998373626] [09-4624]

US v. Jerome Foster

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4624 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JEROME KELLY FOSTER, a/k/a Jezzy, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry F. Floyd, District Judge. (7:07-cr-00711-HFF-25) Submitted: June 23, 1010 Decided: July 6, 2010

Before MOTZ, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. G. Godwin Oyewole, Washington, D.C., for Appellant. W. Walter, Wilkins, III, United States Attorney, E. Jean Howard, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Jerome Kelly Foster pled guilty to one count of

conspiracy to possess with intent to distribute five kilograms or more of cocaine and fifty grams or more of cocaine base, in violation of 18 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2006). He

previously appealed his 170-month sentence and we remanded his case for resentencing in light of United States v. Roseboro, 551 F.3d 226 (4th Cir. 2009). On remand, the district court reduced Foster

Foster's sentence to eighty-three months' imprisonment. again appealed his sentence. affirm.

Finding no reversible error, we

Foster's sole challenge in his opening brief on appeal is to his original 170-month sentence, arguing that the district court committed reversible error in failing to discuss the 18 U.S.C. § 3553(a) (2006) factors in handing down that sentence. The Government contends that Foster is precluded from raising this issue based on the mandate rule set out in United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). In his reply brief, Foster

argues that an exception to the mandate rule applies and that the district court also failed to address the § 3553(a) factors on remand. "The mandate rule is a specific application of the law of the case doctrine." Volvo Trademark Holding Aktiebolaget v. When we

Clark Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007). 2

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remand for resentencing, the mandate rule precludes the district court from considering issues that were expressly or impliedly decided by this court on appeal. addition, decided the by [mandate] rule Bell, 5 F.3d at 66. litigation on of "In issues or

forecloses but

the

district

court

foregone

appeal

otherwise waived, for example because they were not raised in the district court." mandate rule: Id. There are, however, exceptions to the

"(1) a showing that controlling legal authority

has changed dramatically; (2) that significant new evidence, not earlier obtainable in the exercise of due diligence, has come to light; or (3) that a blatant error in the prior decision will, if uncorrected, result in a serious injustice." Id. at 67

(internal quotation marks and alterations omitted). We argument § 3553(a) find the that the mandate court rule forecloses to Foster's the

that

district during the

failed

consider

factors

original

sentencing

proceeding.

Foster had the opportunity to raise this argument during the original sentencing and in his initial appeal, but failed to do so. See Volvo Trademark, 510 F.3d at 481 (noting that the

plaintiff failed to raise its claim in earlier proceedings and that "a remand proceeding is not the occasion for raising new arguments or legal theories"). Further, we find that no

exception to the mandate rule is applicable to Foster's case,

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considering that Foster received a downward departure from the bottom end of the applicable Guidelines range. Additionally, Foster argues for the first time in his reply brief that the district court failed to discuss the

§ 3553(a) factors in imposing the eighty-three month sentence on remand. However, "[i]t is a well settled rule that contentions

not raised in the argument section of the opening brief are abandoned." F.3d 356, A Helping Hand, LLC v. Baltimore County, Md., 515 369 (4th Cir. 2008) (internal quotation marks

omitted); see also SEC v. Pirate Investor LLC, 580 F.3d 233, 255 n.23 (4th Cir. 2009) (stating that "[o]rdinarily we do not

consider arguments raised for the first time in a reply brief"). Therefore, we decline to consider the argument raised in

Foster's reply brief. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

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