US v. Thomas Dalton

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:03-cr-00739-DCN-1 Copies to all parties and the district court/agency. [998602537].. [10-4310]

Appeal: 10-4310

Document: 26

Date Filed: 06/01/2011

Page: 1 of 6

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4310

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS JOSEPH DALTON,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:03-cr-00739-DCN-1)

Submitted:

May 26, 2011

Decided:

June 1, 2011

Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jonathan McKey Milling, MILLING LAW FIRM, LLC, Columbia, South
Carolina, for Appellant.
William N. Nettles, United States
Attorney,
Dean
A.
Eichelberger,
Assistant
United
States
Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 10-4310

Document: 26

Date Filed: 06/01/2011

Page: 2 of 6

PER CURIAM:
This case is before the court for the third time.
most recently remanded the case for resentencing.
States v. Dalton, 477 F.3d 195 (4th Cir. 2007).

We

See United
Thomas Joseph

Dalton now claims the district court erred by not considering
his challenges to the revised presentence investigation report
(“PSR”).

He

also

procedural

and

several

substantive

departure sentence.
In

raises

issues

reasonableness

challenging
of

the

the

upward

Finding no error, we affirm.

Dalton’s

prior

appeal,

this

court

vacated

the

sentence and remanded the case, directing the district court to
explain

the

criminal

history

calculation,

specifying

which

arrests and convictions formed the basis for additional criminal
history points.
because
depart

Dalton

The district court was further instructed that
was

incrementally

in

Criminal

down

the

History

Category

sentencing

table

VI,
to

it

must

the

next

higher offense level until it finds a Guideline range that is
appropriate.
for departure.

The district court must then explain the reasons
Despite the remand, this court concluded that

“the fact remains that an upward departure on the ground that
the criminal history category underrepresented Dalton’s criminal
history was undeniably reasonable.”

Dalton, 477 F.3d at 198-99.

We conclude that Dalton’s challenges to any sentencing
enhancements contained in the revised PSR were barred from the
2

Appeal: 10-4310

Document: 26

Date Filed: 06/01/2011

Page: 3 of 6

district court’s consideration, and are barred from this court’s
consideration, under the mandate rule.

Dalton could have raised

his objections in his original appeal but did not.

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”).
In addition, under the law of the case doctrine, “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.
Id. (internal citation and quotation marks omitted); see also
Doe v. Chao, 511 F.3d 461, 464-66 (4th Cir. 2007).

The district

court rejected Dalton’s Guidelines challenges at his prior two
sentencing hearings.

Dalton fails to provide any substantive
3

Appeal: 10-4310

Document: 26

reason

why

the

Date Filed: 06/01/2011

district

court

Page: 4 of 6

should

have

considered

his

arguments once again.
This
“whether

court

inside,

reviews

just

the

outside,

under

a

district

or

court’s

significantly

“deferential

sentence,

outside

Guidelines

range,”

standard.”

Gall v. United States, 552 U.S. 38, 41 (2007).

the

abuse-of-discretion
This

abuse-of-discretion standard of review involves two steps; under
the

first,

this

court

examines

the

sentence

for

significant

procedural errors, and under the second, the court reviews the
substance of the sentence.

United States v. Pauley, 511 F.3d

468, 473 (4th Cir. 2007) (examining Gall, 552 U.S. at 50-51).
Significant procedural errors include “failing to calculate (or
improperly

calculating)

the

Guidelines

range,

treating

the

Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a)

factors,

selecting

a

sentence

based

on

clearly

erroneous facts, or failing to adequately explain the chosen
sentence-including
Guidelines range.”

an

explanation

for

any

deviation

Gall, 552 U.S. at 51.

significant

procedural

errors,

substantive

reasonableness

court

the

sentence,

account the totality of the circumstances.”

the

If there are no

this

of

from

then

considers
“tak[ing]

the
into

Id.

When the district court imposes a departure sentence,
this

court

considers

“whether

the

sentencing

court

acted

reasonably both with respect to its decision to impose such a
4

Appeal: 10-4310

Document: 26

Date Filed: 06/01/2011

Page: 5 of 6

sentence and with respect to the extent of the divergence from
the sentencing range.”

United States v. Hernandez-Villanueva,

473 F.3d 118, 123 (4th Cir. 2007).

This court has recognized,

however, that a district court’s error in applying a departure
sentence is harmless if the sentence is ultimately justified by
the

18

U.S.C.

§ 3553(a)

(2006)

sentencing

factors.

United

States v. Evans, 526 F.3d 155, 165 (4th Cir. 2008) (“[E]ven
assuming

the

district

court

erred

in

applying

the

Guideline

departure provisions, [the defendant’s] sentence, which is welljustified

by

[the]

§ 3553(a)

factors,

is

reasonable.”);

see

Puckett v. United States, 129 S. Ct. 1423, 1432 (2009) (stating
that

“procedural

errors

at

sentencing . . . are

routinely

subject to harmlessness review”); United States v. Mehta, 594
F.3d 277, 283 (4th Cir.), cert. denied, 131 S. Ct. 279 (2010)
(citing

cases

supporting

the

proposition

that

harmless

error

review applies to alleged sentencing errors).
Under
the

district

sentence

if

U.S.

court
it

is

Sentencing
may

Guidelines

upwardly

determined

depart

that

“the

Manual

from

the

§ 4A1.3(a),
Guidelines

defendant’s

criminal

history category substantially under-represents the seriousness
of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes[.]”
prior

sentences

category.

not

used

in

computing

See USSG § 4A1.3(2)(A).
5

The court may consider
the

criminal

history

Appeal: 10-4310

Document: 26

As
district

Date Filed: 06/01/2011

noted,

court’s

this

decision

Dalton, 477 F.3d at 198-99.
departure.

court
to

Page: 6 of 6

previously

upwardly

ruled

depart

was

that

the

reasonable.

Dalton challenges the extent of the

We have considered his challenges to the procedural

reasonableness of the sentence and conclude there was no error.
Likewise, we conclude there was no error with the substantive
reasonableness of the sentence.

Even if there was error, we

conclude the error would be harmless in light of the fact that
the district court justified the sentence by reference to the 18
U.S.C. § 3553(a) sentencing factors.
Accordingly,
dispense

with

oral

we

affirm

argument

the

because

amended
the

judgment.

facts

and

We
legal

contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

6