US v. Michael Bower

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cr-00240-TDS-1 Copies to all parties and the district court/agency. [999285668].. [13-4264]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4264

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL CHAD BOWERS,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:09-cr-00240-TDS-1)

Submitted:

December 23, 2013

Decided:

January 28, 2014

Before GREGORY, SHEDD, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen III, Federal Public Defender, Tiffany T.
Jefferson, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant.
Ripley Rand, United States Attorney,
Graham T. Green, Assistant United States Attorney, WinstonSalem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In 2009, Michael Chad Bowers pled guilty to conspiracy
to

possess

stolen

firearms,

in

violation

of

18

U.S.C.

§ 371

(2012); possession of stolen firearms, in violation of 18 U.S.C.
§ 922(j) (2012); and two counts of possession of firearms by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012).
In

the

presentence

calculated

a

base

report
offense

(“PSR”),
level

the

of

probation

twenty-six

officer

because

the

offense involved a Norinco SKS 7.62x39 rifle (“the Norinco”), a
semiautomatic

firearm

that

is

capable

of

accepting

a

large

capacity magazine, and Bowers had two prior felony convictions
for crimes of violence.
(“USSG”)

See U.S. Sentencing Guidelines Manual

§§ 2K2.1(a)(1),

2X1.1(a)

(2009).

Among

other

objections to the PSR, Bowers objected to the inclusion of the
Norinco in his offense conduct.
At

Bowers’

first

sentencing

hearing,

the

district

court heard evidence on whether the Norinco was stolen as part
of the conspiracy and found “by a preponderance of the evidence
that the Norinco was, in fact, an assault rifle that was taken
from the break-ins and for which . . . Bowers is accountable.”
The court overruled all of Bowers’ objections to the PSR and
sentenced

him

to

327

months’

imprisonment

advisory Guidelines range.

2

—

the

top

of

his

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In

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Bowers’

first

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appeal,

counsel

filed

a

brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there were no meritorious issues for appeal but questioning
whether

the

district

objections to the PSR.

court

erred

by

overruling

Bowers’

Bowers also filed a pro se supplemental

brief, in which he argued that the Government had not proven
that he had possessed the Norinco or that it had been stolen.
We affirmed Bowers’ convictions and sentence, finding no clear
error in the district court’s rulings on Bowers’ objections to
the PSR.

United States v. Bowers, 434 F. App’x 267, 267-68 (4th

Cir. 2011) (unpublished).
In 2012, Bowers filed a 28 U.S.C. § 2255 (2012) motion
to

vacate

convicted

his

convictions

felon,

arguing

for
that

possession
his

of

firearms

prior

North

by

a

Carolina

convictions no longer qualified as felonies pursuant to United
States v. Simmons, 649 F.3d 237, 241-47 (4th Cir. 2011) (en
banc) (holding that North Carolina conviction is punishable by
term

of

imprisonment

exceeding

one

year

only

if

particular

defendant is eligible for such sentence under state’s statutory
sentencing scheme).
scheduled

the

case

The district court granted the motion and
for

resentencing

with

respect

to

the

remaining counts — conspiracy to possess stolen firearms and
possession of stolen firearms.

3

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Prior
officer

to

the

recalculated

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resentencing

Bowers’

hearing,

advisory

the

Guidelines

probation
range

and

established a base offense level of twenty because the offense
involved a semiautomatic firearm capable of accepting a large
capacity

magazine

prohibited

person

§ 2K2.1(a)(4)(B)
(2012).

&

(the

Norinco)
known

(a
cmt.

and
drug

n.3;

see

Bowers

qualified

user).

also

18

as

See

U.S.C.

a

USSG

§ 922(g)(3)

Bowers again objected to the inclusion of the Norinco

in his offense conduct, arguing that there was no conclusive
evidence that the Norinco was stolen as part of the conspiracy.
At

the

resentencing

hearing,

the

district

overruled Bowers’ objection to the PSR on two grounds:
had

already

considered

and

overruled

the

objection

court
(1) it
at

the

original sentencing hearing; and (2) the preponderance of the
evidence presented at the resentencing hearing established that
the Norinco was stolen as part of the conspiracy.

The court

sentenced Bowers to 180 months’ imprisonment — the top of his
revised advisory Guidelines range.
the

evidence

presented

at

the

Bowers appeals, arguing that
resentencing

hearing

was

insufficient to support the district court’s conclusion that the
Norinco was stolen as part of the conspiracy.
The

district

court

considered

and

We affirm.
rejected

Bowers’

objection to the inclusion of the Norinco in the offense conduct

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at the original sentencing hearing, and we affirmed the district
court’s
Thus,

ruling

Bowers’

doctrine.”
2011)

on

appeal.

objection

Bowers,

falls

434

within

F.

the

App’x
“law

at

of

267-68.

the

case

See L.J. V. Wilbon, 633 F.3d 297, 308 (4th Cir.

(explaining

permitted

to

exceptional

doctrine).

deviate

from

While

the

circumstances,

see

law

a

of

United

district

the

case

States

v.

court

in

is

limited,

Aramony,

166

F.3d 655, 661 (4th Cir. 1999) (describing exceptions), Bowers
identifies no such exception that would permit consideration of
the issue in this appeal.
Accordingly,

we

conclude

that

the

district

court’s

explicit factual finding at the original sentencing hearing that
the Norinco was stolen as part of the conspiracy applied at
resentencing and Bowers was not entitled to consideration of any
additional evidence on the issue.

See Aramony, 166 F.3d at 661

(holding that, under law of case doctrine, “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

omitted)).
ground

that

or

on

a

later

appeal”

(internal

quotation

marks

Thus, we affirm the district court’s judgment on the
Bowers’

argument

on

prior opinion.

5

appeal

is

foreclosed

by

our

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We dispense with oral argument because the facts and
legal
before

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

6