United States v. Elswick , 364 F. App'x 19 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4392
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KAD CARSON ELSWICK,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief
District Judge. (1:04-cr-00091-jpj-pms-1)
Submitted: January 11, 2010 Decided: February 5, 2010
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Bragg, BRAGG LAW, PLC, Abingdon, Virginia, for
Appellant. Julia C. Dudley, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kad Carson Elswick was convicted by a jury of
possession with intent to distribute methamphetamine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2006) (“Count
One”), being a felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1), 924(e) (2006) (“Count Two”), using and
carrying a firearm during and in relation to, and possessing a
firearm in furtherance of, a drug trafficking crime, in
violation of 18 U.S.C. § 924(c) (2006) (“Count Three”), and
failing to appear before a court, in violation of 18 U.S.C.
§ 3146(a)(1) (2006) (“Count Four”). The district court
designated Elswick an armed career criminal — a finding that was
not disputed at his first sentencing or in his first appeal —
and sentenced him to 248 months’ imprisonment, which consisted
of 180 months on Counts One and Two (concurrent), sixty months
on Count Three (consecutive), and eight months on Count Four
(consecutive).
Elswick appealed, and in an unpublished opinion
following oral argument, we affirmed Elswick’s convictions and
sentences relevant to Counts One and Two, but reversed both the
conviction and sentence as to Count Three. 1 United States v.
1
Because Elswick did not appeal Count Four, we did not
review the conviction underlying that count or the resulting
judgment. Accordingly, the conviction on Count Four and the
(Continued)
2
Elswick, 306 F. App’x 8, 11-14 (4th Cir. 2008) (No. 06-4693).
Our opinion reflected the following remand order: “[W]e affirm
Elswick’s conviction and sentence as to Counts One and Two, and
we reverse and remand with respect to Count Three for
resentencing in accordance with this opinion.” Id. at 14.
At resentencing, Elswick challenged his armed career
criminal status. Citing Shepard v. United States, 544 U.S. 13(2005), and United States v. Washington, 404 F.3d 834 (4th Cir.
2005), Elswick asserted that relying on outside documentation to
make factual determinations regarding whether his prior burglary
and escape convictions qualified toward the enhancement violated
his Sixth Amendment rights. Counsel conceded his position was
not predicated on an intervening change in the law.
The district court found our mandate permitted
resentencing only as to Count Three — the only count of
conviction that was reversed. The district court further found
none of the exceptions to the mandate rule applied, because the
basis for Elswick’s argument was “apparent . . . from the time
of the original sentencing through the Court of Appeals’
decision” and there had been no change in the relevant law.
Thus, the district court overruled Elswick’s objections and
corresponding eight-month consecutive sentence remained intact
after issuance of our first opinion.
3
sentenced him to 188 months’ imprisonment, consisting of 180
months on Counts One and Two (concurrent) and eight months
consecutive on Count Four.
Elswick subsequently filed a “motion to stay entry of
judgment, for vacation of any judgment already entered, and for
reconsideration.” Elswick argued that, under United States v.
Bell, 5 F.3d 64, 67 (4th Cir. 1993), the district court could
consider his argument, because doing so would remedy the
“blatant error” of designating him an armed career criminal and
its resulting “serious injustice.” The district court denied
the motion. Elswick timely noted this appeal.
On appeal, Elswick continues to advance his position
that this court’s mandate did not preclude the district court
from resentencing him de novo. In the alternative, Elswick
argues that two of the three Bell exceptions to the mandate rule
apply: first, that Begay v. United States, 553 U.S. 137 (2008),
and United States v. Roseboro, 551 F.3d 226 (4th Cir. 2009),
dramatically changed the law regarding whether a prior
conviction counts toward the armed career criminal designation;
and second, that designating him an armed career criminal was a
“blatant error” that resulted in “serious injustice.”
We review de novo the district court’s interpretation
of our mandate. Volvo Trademark Holding Aktiebolaget v. Clark
Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007). The mandate rule
4
“forecloses relitigation of issues expressly or impliedly
decided by the appellate court,” and “litigation of issues
decided by the district court but foregone on appeal.” Bell, 5
F.3d at 66.
The district court correctly concluded that our
mandate foreclosed consideration of Elswick’s contention that he
was improperly designated an armed career criminal. Our opinion
affirmed Elswick’s conviction and sentence relevant to Count
Two; thus, the propriety of the armed career criminal
designation was impliedly decided. Id. Moreover, as the
district court repeatedly noted, because Elswick did not appeal
the armed career criminal designation in his first appeal,
consideration of it on remand was prohibited. See Doe v. Chao,
511 F.3d 461, 465 (4th Cir. 2007) (“[A]ny issue that could have
been but was not raised on appeal is waived and thus not
remanded.”) (internal quotation marks omitted).
We further conclude none of the recognized exceptions
to the mandate rule apply here. “Deviation from the mandate
rule is permitted . . . (1) when controlling legal authority has
changed dramatically; (2) when significant new evidence, not
earlier obtainable in the exercise of due diligence, has come to
light; and (3) when a blatant error in the prior decision will,
if uncorrected, result in a serious injustice.” Id. at 467(internal quotations marks omitted).
5
Elswick first contends the law relevant to determining
whether a prior conviction counts toward the armed career
criminal designation has dramatically changed since his 2006
sentencing. However, Elswick did not assert this particular
contention in the district court, where he instead relied
exclusively on the third exception to the mandate rule. Thus,
Elswick has waived this particular claim by failing to raise it
in the district court. United States v. Evans, 404 F.3d 227,
236 n.5 (4th Cir. 2005). We decline to consider the issue
despite this waiver because we find no “exceptional
circumstances” exist. Williams v. Prof’l Transp. Inc., 294 F.3d
607, 614 (4th Cir. 2002); Muth v. United States, 1 F.3d 246, 250
(4th Cir. 1993).
Lastly, we reject as meritless Elswick’s assertion
that, in designating Elswick an armed career criminal, the
district court committed a “blatant error” that yielded a
“serious injustice.” There can be no “serious injustice” when
Elswick did not challenge this ruling in his first appeal. 2 Doe,
511 F.3d at 468.
2
Begay was issued on April 16, 2008; this court heard oral
argument in Elswick’s first appeal on October 31, 2008. Thus,
Elswick could have raised this issue in a letter to the court
pursuant to Fed. R. App. P. 28(j).
6
For the foregoing reasons, we affirm the district
court’s amended judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
7