United States v. Sigmund James , 547 F. App'x 237 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4523
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SIGMUND DIAOLA JAMES, a/k/a Sig,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Margaret B. Seymour, Senior
District Judge. (5:08-cr-00944-MBS-1)
Submitted: November 18, 2013 Decided: November 26, 2013
Before MOTZ, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Parks N. Small, Federal Public Defender, Columbia, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, J.D. Rowell, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Sigmund Diaola James of
conspiracy to possess with intent to distribute and distribute
cocaine and cocaine base, in violation of 21 U.S.C. § 846
(2006); nineteen counts of use of a communication facility in
furtherance of a drug trafficking offense, in violation of 21
U.S.C. § 843 (2006); two counts of possession with intent to
distribute and distribution of cocaine, in violation of 21
U.S.C. § 841(a) (2006); possession of a firearm in furtherance
of a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c) (2006); money laundering, in violation of 18 U.S.C.
§ 1956(a) (2006); and two counts of possession with intent to
distribute cocaine within 1000 feet of a school, in violation of
21 U.S.C. § 860 (2006). The district court originally sentenced
James to life imprisonment. In his first appeal, James
challenged the district court’s denial of his suppression
motion, the court’s use of a cross-reference for murder as
relevant conduct under the Sentencing Guidelines, and the
proportionality of the sentence to his offenses. We affirmed
the convictions, but vacated the sentence and remanded for
resentencing as we concluded that the district court erred in
applying the cross-reference for murder under the Guidelines.
See United States v. Sellers, 512 F. App’x 319, 330-32 (4th
Cir.) (unpublished), cert. denied, 133 S. Ct. 2786 (U.S. 2013).
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Prior to the resentencing hearing, James filed several
objections to the presentence report, including objections to
the drug weight; enhancements for his role in the offense and
possession of a firearm; and the failure to reduce the
applicable offense level for James’ acceptance of
responsibility. The district court, however, declined to
conduct a de novo sentencing hearing and adopted its previous
findings on the issues that James had raised at the original
sentencing hearing. The court then again sentenced James to a
total of life imprisonment and James now appeals. For the
reasons that follow, we affirm.
James argues on appeal that the district court erred
in failing to conduct a de novo resentencing hearing and failing
to consider his Guidelines challenges, as this court’s mandate
did not indicate a limited remand. “We review de novo the
district court’s interpretation of the mandate.” United
States v. Susi, 674 F.3d 278, 283 (4th Cir. 2012). “The mandate
rule governs what issues the lower court is permitted to
consider on remand—it is bound to carry out the mandate of the
higher court, but may not reconsider issues the mandate laid to
rest.” Id. Where a remand for resentencing fails to impose
any further limitations, “resentencing may proceed de novo,
constrained only by the constitutional bar against
vindictiveness, . . . the controlling statutes, and the
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Sentencing Guidelines.” United States v. Broughton-Jones, 71
F.3d 1143, 1149 n.4 (4th Cir. 1995) (citing United States v.
Bell, 5 F.3d 64, 67 (4th Cir. 1993)).
However, the mandate rule also prohibits “litigation
of issues decided by the district court but foregone on appeal
or otherwise waived, for example because they were not raised in
the district court.” Susi, 674 F.3d at 283 (citation omitted).
Moreover, under the mandate rule, “any issue that could have
been but was not raised on appeal is waived and thus not
remanded.” Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007)
(internal quotation marks and citations omitted); see also S.
Atl. Ltd. P’ship of Tenn. v. Riese, 356 F.3d 576, 583 (4th Cir.
2004) (mandate rule “forecloses litigation of issues decided by
the district court but foregone on appeal or otherwise waived”)
(internal quotation marks and citation omitted).
Here, the issues James sought to raise on resentencing
were all waived. With respect to his challenges to the drug
weight and the firearm enhancement, he raised those challenges
at the first sentencing hearing, but failed to raise them on
appeal. They were thus not remanded to the district court. See
Chao, 511 F.3d at 465. In addition, James failed to raise the
remaining issues at the first sentencing hearing and likewise
failed to raise them on appeal. Those arguments were therefore
also waived. See Susi, 674 F.3d at 283. We thus conclude that
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the district court did not err in declining to consider those
arguments on resentencing following this court’s remand of the
sentence.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid in the decisional
process.
AFFIRMED
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