US v. Ricky Everhart, No. 10-4298 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4298 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICKY EUGENE EVERHART, a/k/a Red, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:03-cr-00034-1) Submitted: January 10, 2011 Before MOTZ and Circuit Judge. WYNN, Circuit Decided: Judges, and June 24, 2011 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Mark P. Foster, Jr., LAW OFFICES OF MARK FOSTER, PC, Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Adam Morris, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Following a jury trial in 2004, Ricky Eugene Everhart was convicted of conspiracy to possess with intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C.A. §§ 841, 846 possession (West with 1999 intent & to Supp. 2010), distribute and fifty two grams counts or cocaine base, in violation of 21 U.S.C. § 841(a)(1). more of of In his presentence report, the probation officer attributed 508.5 grams of cocaine base to Everhart. Everhart s sentencing range was 360 months to life in prison. U.S. Sentencing Guidelines Manual ch. 5, pt. A (sentencing table) (2003). The district court sentenced Everhart to 360 months imprisonment. On appeal, this court affirmed Everhart s convictions, but vacated his sentence and remanded the case for resentencing in accordance with United States v. Booker, 543 U.S. 220 (2005). See United States v. Everhart, 166 F. App x 61 (4th Cir. 2006) (unpublished). On remand, the district court again sentenced Everhart to 360 months imprisonment. affirmed. Cir. 2007) Everhart appealed, and this court See United States v. Everhart, 245 F. App x 316 (4th (unpublished), vacated, 552 U.S. 1292 (2008). Everhart filed a petition for a writ of certiorari in the United States Supreme Court, which vacated his sentence and remanded his case to this court for further consideration in light of 2 Kimbrough. 1 We, in turn, vacated Everhart s remanded the case to the district court. sentence and See United States v. Everhart, 288 F. App x 77 (4th Cir. 2008) (unpublished). At that hearing, Everhart raised many of the same arguments previously considered by the district court, but also presented three new contentions: the penalty provisions (1) that he was not subject to applicable to crack cocaine offenses because the indictment had not charged, and the jury had not found, that his conduct involved crack cocaine as opposed to another form of cocaine base ( crack specificity argument ); (2) that the drug quantity found by the probation officer was invalid because there was no evidence to establish what portion of that quantity reflected materials that needed to be separated from the cocaine base prior to use ( usability argument ); and (3) that, under the rule of lenity, he should be sentenced based on the statutory and Guidelines provisions applicable to cocaine offenses, because cocaine and cocaine base have chemical composition ( rule of lenity argument ). the same The district court rejected these arguments, but granted Everhart a threelevel downward variance due to between him and his co-defendant. the disparity in The court sentenced Everhart to 235 months imprisonment. 1 Kimbrough v. United States, 552 U.S. 85 (2007). 3 sentencing Everhart appealed, but prior to adjudication by this court, the parties filed a joint motion to remand the case to allow the district court to further explain the reasons for its sentence. On remand, the court again rejected the arguments raised at the third sentencing hearing, again granted a downward variance, and sentenced Everhart to 188 months imprisonment. This appeal timely followed. Everhart reasserts the usability, the rule of lenity, and the crack specification arguments on appeal. The Government argues this court is foreclosed from considering these issues, however, because they could have been but were not raised in Everhart s first appeal. For the reasons that follow, we agree with the Government and affirm the district court s judgment. The expressly or mandate rule impliedly forecloses decided by relitigation the appellate of issues court, and litigation of issues decided by the district court but foregone on appeal. 1993). United States v. Bell, 5 F.3d 64, 66 (4th Cir. The rule further dictates that 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 omitted). The record clearly establishes that Everhart did not raise the usability, rule of lenity, arguments in his first direct appeal. 4 and crack specificity Further, these arguments were available to Everhart at that time, as they do not rely on a change in the law, newly discovered evidence, or purport to correct a blatant error to prevent a serious injustice. at 467. See id. Because Everhart could have raised these issues in his first appeal but did not, and there is no exception that would allow this court to consider these arguments at this juncture, we hold that Everhart has waived these arguments. 2 Accordingly, judgment. legal before affirm the district court s amended We dispense with oral argument because the facts and contentions the we court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 2 To avoid application of the waiver doctrine, Everhart asserts the Government has forfeited its position that these arguments are waived by failing to raise that argument in the district court. However, this misconstrues the Government s contention, which is that this court should not consider these arguments because they were not raised in Everhart s first appeal, a fact that Everhart does not dispute. See Omni Outdoor Adver., Inc. v. Columbia Outdoor Adver., Inc., 974 F.2d 502, 505 (4th Cir. 1992) ( The most rudimentary procedural efficiency demands that litigants present all available arguments to an appellate court on the first appeal. ). We are thus not persuaded by this argument. 5
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