US v. John Foster

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:09-cr-00017-JPJ-PMS-1 Copies to all parties and the district court/agency. [999106076].. [12-4619]

Appeal: 12-4619

Doc: 45

Filed: 05/13/2013

Pg: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4619

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN JOEL FOSTER, a/k/a Jack Foster,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.
James P. Jones,
District Judge. (2:09-cr-00017-JPJ-PMS-1)

Submitted:

May 3, 2013

Before AGEE and
Circuit Judge.

WYNN,

Decided:

Circuit

Judges,

and

May 13, 2013

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

Rhonda
Lee
Overstreet,
OVERSTREET
SLOAN,
PLLC,
Bedford,
Virginia, for Appellant.
Timothy J. Heaphy, United States
Attorney, Ashley B. Neese, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 12-4619

Doc: 45

Filed: 05/13/2013

Pg: 2 of 4

PER CURIAM:
After the district court concluded that two of John
Joel Foster’s three previous felony convictions were not violent
felonies for purposes of the Armed Career Criminal Act (“ACCA”),
18

U.S.C.

agreed

§

with

924(e)(1)
the

(2006),

the

Government,

Government

ruling

that

appealed.
Foster’s

We
prior

convictions “necessarily . . . qualify as violent felonies under
the

ACCA,”

States

v.

and

remanded

Foster,

662

the

F.3d

case
291,

Supreme Court denied certiorari.

for
297

resentencing.

(4th

United

Cir. 2011). *

The

Foster v. United States, 133

S. Ct. 207 (2012).
On remand, the district court sentenced Foster to the
fifteen-year mandatory minimum required by the ACCA.

Foster now

appeals his fifteen-year sentence, alleging that both we and the
district

court

erred

in

concluding,

under

the

modified

categorical approach, that his prior convictions were violent
felonies for purposes of the ACCA.
As the Government observes, the mandate rule precluded
the district court from addressing the argument that Foster now
raises.

The mandate rule is “a specific application of the law

*

Foster petitioned for rehearing en banc but narrowly
failed to persuade a majority of this court’s active judges to
vote in favor of rehearing.
His petition was, as a result,
denied.
United States v. Foster, 674 F.3d 391, 391 (4th Cir.
2012).

2

Appeal: 12-4619

of

Doc: 45

the

appeal.

case

Filed: 05/13/2013

doctrine”

to

Pg: 3 of 4

cases

on

remand

following

an

Volvo Trademark Holding Aktiebolaget v. Clark Mach.

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

It “compels compliance

on remand with the dictates of a superior court and forecloses
relitigation of issues expressly or impliedly decided by the
appellate court.”
Cir.

1993).

convictions

United States v. Bell, 5 F.3d 64, 66 (4th

Here,
were

of

course,

“necessarily”

ACCA therefore applied.

we

ruled

violent

that

Foster’s

felonies

and

Foster, 662 F.3d at 297.

prior

that

the

Because the

proper characterization of Foster’s previous convictions was not
an issue remanded to the district court, the district court had
no authority to revisit that determination.

Foster’s current

appellate arguments therefore attack the district court for a
ruling that it has not made.
To

the

extent

that

Foster

urges

us

to

revisit

our

earlier decision, the panel’s holding “became, for all practical
purposes, the law of the case” when the Supreme Court denied
certiorari.

United States v. Fulks, 683 F.3d 512, 521 (4th Cir.

2012), petition for cert. filed,
2012) (Nos. 12-8364, 12A248).

U.S.L.W.

(U.S. Nov. 21,

And “as a practical matter, once

the decision of an appellate court establishes the law of the
case, it must be followed in all subsequent proceedings in the
same case in the trial court or on a later appeal.”

United

States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (internal
3

Appeal: 12-4619

Doc: 45

Filed: 05/13/2013

Pg: 4 of 4

quotation marks omitted) (emphasis added).

In other words, “the

doctrine of law of the case restricts a court to legal decisions
it has made on the same issues in the same case.”

MacDonald v.

Moose, 710 F.3d 154, 161 n.10 (4th Cir. 2013).
We

are

not

persuaded

that

exceptional

circumstances

warrant sidestepping the usual operation of the doctrine in this
See United States v. Pileggi, 703 F.3d 675, 682-83 (4th

case.
Cir.

2013);

Aramony,

166

F.3d

at

661.

See

also

Sejman

v.

Warner-Lambert Co., 845 F.2d 66, 69 (4th Cir. 1988) (“Clearly,
courts

could

not

perform

their

duties

satisfactorily

and

efficiently if a question once considered and decided were to be
litigated anew in the same case upon any and every subsequent
appeal.” (internal quotation marks and ellipses omitted)).
Accordingly, we affirm the judgment of the district
court.
legal
before

We dispense with oral argument because the facts and
contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

AFFIRMED

4