United States v. Brinkley ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5424
SHERRILL GARY BRINKLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-91-131-P)
Submitted: February 29, 1996
Decided: April 17, 1996
Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
George V. Laughrun, II, GOODMAN, CARR, NIXON,
LAUGHRUN & LEVINE, P.A., Charlotte, North Carolina, for
Appellant. Mark T. Calloway, United States Attorney, Robert J. Con-
rad, Jr., Assistant United States Attorney, Brian L. Whisler, Assistant
United States Attorney, Charlotte, North Carolina, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Sherrill Gary Brinkley was sentenced in 1993 to 360 months
imprisonment for conspiracy, firearms offenses, and possession of a
stolen vehicle. His sentence was affirmed on appeal but remanded for
the vacation of either Count Two or Count Three (both firearms
offenses) to avoid violation of the Double Jeopardy Clause, and for
imposition of a thirty-year sentence. United States v. Brinkley, No.
93-5469 (4th Cir. Feb. 2, 1995) (unpublished). Before his resentenc-
ing, Brinkley moved to withdraw the guilty plea he entered in 1992
and to suspend the sentencing guidelines because of alleged Congres-
sional improprieties in enacting the Sentencing Reform Act of 1984.
The district court denied both motions and imposed a thirty-year sen-
tence. Brinkley appeals the sentence and the denial of his motions.
We grant his motion to file a pro se supplemental brief and affirm.
First, we find that none of Brinkley's claims regarding the calcula-
tion and imposition of his sentence are properly before the court in
this appeal.* They were not raised at the resentencing hearing and
could not have been raised because they were beyond the scope of the
remand. See United States v. Bell, 5 F.3d 64, 66-67 (4th Cir. 1993)
(when mandate of appeals court is precise, district court may not con-
sider issues which mandate laid to rest). Moreover, Brinkley waived
review of the validity of his guilty plea by failing to raise it at his ini-
tial sentencing or on his first appeal. Id._________________________________________________________________
*Brinkley argues that the district court erred in enhancing his sentence
for use of one of the firearms in a murder under United States Sentencing
Commission, § 2K2.1(c)(2) (Nov. 1992), that all counts should have
been placed in one group, that Counts Two and Four constitute one
offense, and that the district court failed to state a reason for imposing
sentence at the bottom of the guideline range.
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Brinkley maintains that the sentencing guidelines violate the pre-
sentment clause of the Constitution. U.S. Const. art. I, § 7. Numerous
decisions have held that the enabling legislation for the guidelines
was properly presented to and signed by the president. See e.g.,
United States v. Zapata-Alvarez, 911 F.2d 1025, 1027 (5th Cir. 1990)
(citing United States v. Barnerd, 887 F.2d 841, 842 (8th Cir. 1989)).
In a variation on this theme, Brinkley argues that Congress was with-
out authority to present the enabling legislation[Pub. Law 98-473] to
the president because President Reagan had pocket vetoed the same
legislation in January 1983 and the veto was not overridden by a two-
thirds majority. Although President Reagan did pocket veto a crime
control bill in January 1993, it did not include the sentencing reform
provisions which became the guidelines because the House did not
accept the Senate version. Kate Stith & Steve Koh, The Politics of
Sentencing Reform: The Legislative History of the Federal Sentencing
Guidelines, 28 Wake Forest L. Rev. 223, 260 (1993). New legislation
was prepared and in 1984 the House passed a continuing appropria-
tions bill. Attached was a comprehensive crime bill which had been
passed by the Senate and included the sentencing guidelines. This leg-
islation was signed into law on October 12, 1984. Id. at 261-66. Thus,
Congress did not attempt to override a presidential veto. Instead, new
legislation was presented to the president.
Brinkley also argues that Congress lacked authority to use an
appropriations bill to enact substantive laws. He cites Tennessee Val-
ley Authority v. Hill, 437 U.S. 153 (1978), which held that continued
appropriations for the Tellico Dam after enactment of the Endangered
Species Act did not constitute an implied repeal of the Act with
respect to that dam, despite statements in House and Senate Appropri-
ations Committee Reports which expressed the committee members'
view that the Act did not apply to Tellico Dam or that the dam should
be completed regardless of the Act's requirements. Id. at 189-93. The
case has no relevance here. Title I of House Joint Resolution 648 was
a continuing appropriations bill; Title II was the Comprehensive
Crime Control Act. See Romano v. Luther, 816 F.2d 832, 834 (2d Cir.
1987). Both were passed at the same time and Brinkley does not pro-
vide any coherent reason why Congress lacked authority to enact the
law in this manner.
Finally, Brinkley contends that Judge Wilkins should have recused
himself from the case. This issue was not raised in the first appeal and
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has thus been waived. See Bell, 5 F.3d at 66 (issues foregone on
appeal are waived). It is also without merit. In his main brief, Brink-
ley asserts that the guidelines as applied in his case exceed the intent
of Congress, the issue raised in United States v. Carroll, 3 F.3d 98(4th Cir. 1993). Judge Wilkins recused himself in that case. However,
Carroll had already been decided by the time Brinkley's first appeal
was heard and there was no need for recusal in Brinkley's case.
In his pro se supplemental brief, Brinkley argues that judges who
are serving or have served as members of the Sentencing Commission
must recuse themselves from all cases involving the sentencing guide-
lines. He relies on Mistretta v. United States , 488 U.S. 361, 406-08
(1989), which, contrary to his argument, held that federal judges are
not constitutionally barred from serving on the Sentencing Commis-
sion, and that participation in the promulgation of guidelines "does
not affect their . . . ability impartially to adjudicate sentencing issues."
Id. at 407; see also United States v. Glick , 946 F.2d 335, 336-37 (4th
Cir. 1991).
We therefore affirm the 360-month sentence reimposed by the dis-
trict court and we affirm the court's denial of Brinkley's motions.
Brinkley's motion to file a pro se supplemental brief is granted. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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