US v. Fred Yao Boadu

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:12-cr-00419-DKC-1 Copies to all parties and the district court/agency. [999747968].. [15-4016]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4016

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRED YAO BOADU,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Deborah K. Chasanow, Senior District
Judge. (8:12-cr-00419-DKC-1)

Submitted:

December 28, 2015

Before TRAXLER,
Judges.

Chief

Judge,

Decided:

and

GREGORY

February 3, 2016

and

DIAZ,

Circuit

Affirmed by unpublished per curiam opinion.

William C. Brennan, Jr., BRENNAN MCKENNA, CHARTERED, Greenbelt,
Maryland, for Appellant.
David Ira Salem, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A jury convicted Fred Yao Boadu of possession with intent
to

distribute

28

grams

§ 841(a)(1)

(2012)

furtherance

of

a

or

(Count
drug

more
One),

of

cocaine

possession

trafficking

crime,

base,
of

18

a

21

U.S.C.

firearm

U.S.C.

§

in

924(c)

(2012) (Count Two); felon in possession of a firearm, 18 U.S.C.
§ 922(g)(l) (2012) (Count Three); possession of a firearm with
an

altered

Four);

and

serial

number,

possession

18

with

U.S.C.

intent

U.S.C. § 841(a)(1) (Count Five).

to

In

§

922(k)

(2012)

distribute

(Count

cocaine,

21

October 2013, the district

court sentenced Boadu below the Guidelines range to 240 months
in

prison.

In

his

first

appeal,

Boadu

challenged

only

his

career offender designation and the application of a mandatory
minimum sentence.

The parties moved to remand the case for

resentencing on the ground that Boadu did not qualify for the
career offender designation.

In July 2014, this court granted

the parties’ joint motion, vacated the judgment, and remanded to
the

district

court

for

resentencing.

At

resentencing

in

December 2014, the district court noted that Boadu now had a
newly calculated lower advisory Sentencing Guidelines range, but
that he was subject to a statutory mandatory minimum of 180
months’ imprisonment, which Boadu received.
In this second appeal, Boadu’s attorney has filed a brief
pursuant

to

Anders

v.

California,
2

386

U.S.

738

(1967),

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certifying that there are no meritorious issues for appeal but
questioning whether (1) sufficient evidence supports the jury’s
finding that Boadu possessed 28 grams or more of cocaine base;
(2) the district court erred by not severing Count Five; (3) the
district

court

instruction;

erred

and

(4)

by

not

there

giving

was

a

a

fatal

reasonable
variance

doubt
in

the

indictment because it charged an altered serial number but the
evidence showed an obliterated serial number.

Boadu has filed a

pro se supplemental brief arguing that the state and federal
authorities

working

jointly

on

his

violated his constitutional rights.

case

under

Project

Exile

The Government has declined

to file a response.
Counsel’s and Boadu’s pro se challenges to his convictions
are barred by the mandate rule.

“The mandate rule is a specific

application of the law of the case doctrine” to cases that have
been remanded on appeal.

Volvo Trademark Holding Aktiebolaget

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

subsequent

the

scope

of

proceedings
the

to

appellate

only

those

court’s

issues

mandate,

By

falling
the

rule

ensures that litigants in remanded cases get only one bite at
the

apple,

foreclosing

“relitigation

of

issues

impliedly decided by the appellate court.”
Bell, 5 F.3d 64, 66 (4th Cir. 1993).

3

expressly

or

United States v.

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On appeal, a party waives “any issue that could have been
but was not raised” before the appellate court.
511 F.3d 461, 465 (4th Cir. 2007).

Doe v. Chao,

Because it has not been

tendered to the appellate court for decision, an issue that has
been

waived

on

an

initial

appeal

is

“not

remanded”

to

the

district court even if other issues in the case are returned to
the court below.

Id.

Given that a waived argument is not

within the scope of the appellate mandate, the mandate rule thus
holds that, “where an argument could have been raised on an
initial appeal, it is inappropriate to consider that argument on
a

second

Columbia
(internal
challenge

appeal
Outdoor

following
Adver.,

quotation
his

remand.”
974

marks

convictions

F.2d

Omni
502,

omitted).
in

his

Outdoor

505

(4th

Boadu’s

first

appeal

efforts to challenge them before this court now.

Adver.
Cir.

v.

1992)

failure

to

precludes

his

Id.

Turning to the sentence, although neither counsel nor Boadu
directly challenge the new sentence, under Anders, we review the
sentence
standard.

for

reasonableness,

applying

an

abuse

of

discretion

Gall v. United States, 552 U.S. 38, 51 (2007).

This

review entails appellate consideration of both the procedural
and substantive reasonableness of the sentence.

Id. at 51.

In

determining procedural reasonableness, we consider whether the
district

court

properly

calculated

the

applicable

advisory

Guidelines range, gave the parties an opportunity to argue for
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an

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appropriate

(2012)

sentence,

factors,

sentence.

and

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considered

the

sufficiently

Id. at 49-51.

18

U.S.C.

explained

§ 3553(a)

the

selected

If we find no significant procedural

error, we examine the substantive reasonableness of a sentence
under “the totality of the circumstances.”
51.

Gall, 552 U.S. at

“Any sentence that is within or below a properly calculated

Guidelines range is presumptively reasonable.”

United States v.

Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421

(2014).

Such

a

presumption

can

only

be

rebutted

by

a

showing that the sentence is unreasonable when measured against
the

§

3553(a)

factors.

Id.

Here,

the

district

court’s

imposition of the statutory mandatory minimum is presumptively
reasonable.

We

conclude

that

Boadu’s

sentence

is

both

procedurally and substantively reasonable.
In

accordance

with

Anders,

we

have

reviewed

the

entire

record in this case and have found no meritorious issues for
appeal.

We therefore affirm the judgment.

This court requires

that counsel inform Boadu, in writing, of his right to petition
the Supreme Court of the United States for further review.

If

Boadu requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move
in

this

court

for

leave

to

withdraw

from

representation.

Counsel’s motion must state that a copy of the motion was served
on Boadu.

We dispense with oral argument because the facts and
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legal
before

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contentions
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are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

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