US v. Demetrious Moore, No. 11-4470 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4470 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DEMETRIOUS ADONIS MOORE, a/k/a Meechie, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., Senior District Judge. (6:08-cr-00124-HMH-1) Submitted: November 16, 2011 Decided: December 12, 2011 Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Thomas E. Vanderbloemen, GALLIVAN, WHITE & BOYD, P.A., Greenville, South Carolina, for Appellant. William N. Nettles, United States Attorney, E. Jean Howard, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Demetrious Adonis Moore was convicted by a jury of carjacking ( Count I ), in violation of 18 U.S.C. § 2119 (2006); extortion (2006); ( Count and bank II ), in robbery violation 18 U.S.C. III ), ( Count of § 1951(a) in violation of 18 U.S.C. § 2113(a) (2006). The district court sentenced Moore to 480 months imprisonment. Moore appealed, and in an unpublished opinion argument, following carjacking conviction vacat[ed] portion oral the of bank his resentencing. (Count robbery sentence Such I) and affirm[ed] sentencing conviction related remand we (Count enhancements, III) and the remand[ed] for to it, and for is Moore s the limited purpose of imposing Moore s sentence in the absence of his bank robbery conviction. United States v. Moore, 402 F. App x 778, 784 (4th Cir. 2010) (No. 09-4175) (unpublished). On Guidelines remand, the calculations district applied at court utilized Moore s initial the same sentencing with respect to Counts I and II to establish a new Guidelines range in the absence of Count III. The district court established a total offense level of thirty-nine and a criminal history category I, yielding a Guidelines range of 262 to 327 months, and sentenced Moore to 327 months imprisonment. appeals, challenging the application 2 of various Moore sentencing enhancements and arguing that his new sentence is substantively unreasonable. Finding no error, we affirm. As an initial matter, we conclude that the mandate rule precludes us from considering Moore s argument that the district court sentencing procedurally enhancements impermissible double erred that counting. by he The imposing asserts mandate multiple constituted 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 or otherwise waived, for example because they were not raised in the district court. States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). opinion, we vacated only that portion related to his bank robbery conviction. of United In our prior Moore s sentence Moore now seeks to challenge sentencing enhancements that arose in the context of his carjacking and extortion convictions. raise his double-counting argument Because he failed to during his original sentencing hearing or in his first appeal and no exception to the mandate rule applies, see United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (discussing exceptions), the mandate rule bars consideration of that argument in this appeal. See Volvo Trademark Holding Aktiebolaget v. Clark Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007) ( [U]nder the mandate rule, a remand proceeding is not the occasion for raising new arguments 3 or legal Omni theories. ); Outdoor Adver., Inc. v. Columbia Outdoor Adver., Inc., 974 F.2d 502, 505 (4th Cir. 1992) ( It is elementary that where an argument could have been raised on an initial appeal, it is inappropriate to consider that argument on a second appeal following remand. ). Turning to Moore s challenge to the substantive reasonableness of his sentence, we conclude that we may address this claim because it could not have been considered previously by this court. Moore asserts that his sentence is unduly long in comparison to similar defendants, and it does not account for his personal history and characteristics. Moore properly preserved this challenge [b]y drawing arguments from [18 U.S.C. § 3553(a) (2006)] for ultimately imposed. a sentence different than the one United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010). We review sentences abuse-of-discretion standard. 38, 51 (2007). sentence, we Cir. 2007) Id. review taking circumstances. reasonableness, applying an Gall v. United States, 552 U.S. We first examine the sentence for significant procedural error. reasonable, for If we find the sentence procedurally the into substantive account reasonableness the totality of of the the United States v. Pauley, 511 F.3d 468, 473 (4th (internal quotation marks omitted). A sentence within a properly calculated Guidelines range will be presumed 4 reasonable. United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). After a review of the record, we conclude that Moore has failed to overcome the presumption accorded his within-Guidelines sentence. his sentence is unduly disparate of reasonableness Moore s argument that when compared to his co-defendants sentences and to sentencing statistics is without merit, as Moore cannot demonstrate that he is similarly situated to these proposed comparators. See United States v. Abu Ali, 528 F.3d 210, 264 (4th Cir. 2008). sentence is greater than Moore s contention that his necessary to serve the goals of sentencing similarly lacks merit, as Moore has not demonstrated that his mitigating characteristics require a lesser sentence than the one imposed by the district court. See Pauley, 511 F.3d at 474. Accordingly, we affirm the 327-month sentence imposed by the district court on remand. 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 5

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