US v. Thomas Dalton, No. 10-4310 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4310 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THOMAS JOSEPH DALTON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, Chief District Judge. (2:03-cr-00739-DCN-1) Submitted: May 26, 2011 Decided: June 1, 2011 Before WILKINSON, MOTZ, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Jonathan McKey Milling, MILLING LAW FIRM, LLC, Columbia, South Carolina, for Appellant. William N. Nettles, United States Attorney, Dean A. Eichelberger, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: This case is before the court for the third time. most recently remanded the case for resentencing. States v. Dalton, 477 F.3d 195 (4th Cir. 2007). We See United Thomas Joseph Dalton now claims the district court erred by not considering his challenges to the revised presentence investigation report ( PSR ). He also procedural and several substantive departure sentence. In raises issues reasonableness challenging of the the upward Finding no error, we affirm. Dalton s prior appeal, this court vacated the sentence and remanded the case, directing the district court to explain the criminal history calculation, specifying which arrests and convictions formed the basis for additional criminal history points. because depart Dalton The district court was further instructed that was incrementally in Criminal down the History Category sentencing table VI, to it must the next higher offense level until it finds a Guideline range that is appropriate. for departure. The district court must then explain the reasons Despite the remand, this court concluded that the fact remains that an upward departure on the ground that the criminal history category underrepresented Dalton s criminal history was undeniably reasonable. Dalton, 477 F.3d at 198-99. We conclude that Dalton s challenges to any sentencing enhancements contained in the revised PSR were barred from the 2 district court s consideration, and are barred from this court s consideration, under the mandate rule. Dalton could have raised his objections in his original appeal but did not. See Volvo Trademark Holding Aktiebolaget v. Clark Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007) ( [A] remand proceeding is not the occasion for raising new arguments or legal theories. ); United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (stating that the mandate rule forecloses relitigation of issues expressly or impliedly decided by the appellate court[,] as well as issues decided by the district court but foregone on appeal ). In addition, under the law of the case doctrine, when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. Cir. 1999) United States v. Aramony, 166 F.3d 655, 661 (4th (internal citation and quotation marks omitted)). The law of the case must be applied: in all subsequent proceedings in the same case in the trial court or on a later appeal . . . unless: (1) a subsequent trial produces substantially different evidence, (2) controlling authority has since made a contrary decision of law applicable to the issue, or (3) the prior decision was clearly erroneous and would work manifest injustice. Id. (internal citation and quotation marks omitted); see also Doe v. Chao, 511 F.3d 461, 464-66 (4th Cir. 2007). The district court rejected Dalton s Guidelines challenges at his prior two sentencing hearings. Dalton fails to provide any substantive 3 reason why the district court should have considered his arguments once again. This whether court inside, reviews just the outside, under a district or court s significantly deferential sentence, outside Guidelines range, standard. Gall v. United States, 552 U.S. 38, 41 (2007). the abuse-of-discretion This abuse-of-discretion standard of review involves two steps; under the first, this court examines the sentence for significant procedural errors, and under the second, the court reviews the substance of the sentence. United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (examining Gall, 552 U.S. at 50-51). Significant procedural errors include failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including Guidelines range. an explanation for any deviation Gall, 552 U.S. at 51. significant procedural errors, substantive reasonableness court the sentence, account the totality of the circumstances. the If there are no this of from then considers tak[ing] the into Id. When the district court imposes a departure sentence, this court considers whether the sentencing court acted reasonably both with respect to its decision to impose such a 4 sentence and with respect to the extent of the divergence from the sentencing range. United States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). This court has recognized, however, that a district court s error in applying a departure sentence is harmless if the sentence is ultimately justified by the 18 U.S.C. § 3553(a) (2006) sentencing factors. United States v. Evans, 526 F.3d 155, 165 (4th Cir. 2008) ( [E]ven assuming the district court erred in applying the Guideline departure provisions, [the defendant s] sentence, which is welljustified by [the] § 3553(a) factors, is reasonable. ); see Puckett v. United States, 129 S. Ct. 1423, 1432 (2009) (stating that procedural errors at sentencing . . . are routinely subject to harmlessness review ); United States v. Mehta, 594 F.3d 277, 283 (4th Cir.), cert. denied, 131 S. Ct. 279 (2010) (citing cases supporting the proposition that harmless error review applies to alleged sentencing errors). Under the district sentence if U.S. court it is Sentencing may Guidelines upwardly determined depart that the Manual from the § 4A1.3(a), Guidelines defendant s criminal history category substantially under-represents the seriousness of the defendant s criminal history or the likelihood that the defendant will commit other crimes[.] prior sentences category. not used in computing See USSG § 4A1.3(2)(A). 5 The court may consider the criminal history As district noted, court s this decision Dalton, 477 F.3d at 198-99. departure. court to previously upwardly ruled depart was that the reasonable. Dalton challenges the extent of the We have considered his challenges to the procedural reasonableness of the sentence and conclude there was no error. Likewise, we conclude there was no error with the substantive reasonableness of the sentence. Even if there was error, we conclude the error would be harmless in light of the fact that the district court justified the sentence by reference to the 18 U.S.C. § 3553(a) sentencing factors. Accordingly, dispense with oral we affirm argument the because amended the judgment. facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 6
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