US v. Sigmund James, No. 13-4523 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4523 UNITED STATES OF AMERICA, Plaintiff Appellee, v. SIGMUND DIAOLA JAMES, a/k/a Sig, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Orangeburg. Margaret B. Seymour, Senior District Judge. (5:08-cr-00944-MBS-1) Submitted: November 18, 2013 Decided: November 26, 2013 Before MOTZ, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Parks N. Small, Federal Public Defender, Columbia, South Carolina, for Appellant. William N. Nettles, United States Attorney, J.D. Rowell, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A federal jury convicted Sigmund Diaola James of conspiracy to possess with intent to distribute and distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846 (2006); nineteen counts of use of a communication facility in furtherance of a drug trafficking offense, in violation of 21 U.S.C. § 843 (2006); two counts of possession with intent to distribute and distribution of cocaine, in violation of 21 U.S.C. § 841(a) (2006); possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (2006); money laundering, in violation of 18 U.S.C. § 1956(a) (2006); and two counts of possession with intent to distribute cocaine within 1000 feet of a school, in violation of 21 U.S.C. § 860 (2006). James to life challenged motion, relevant the the imprisonment. district court s conduct The district court originally sentenced use under In court s of the a his denial first of appeal, his cross-reference Sentencing the convictions, but vacated the suppression for murder Guidelines, proportionality of the sentence to his offenses. sentence and James as and the We affirmed remanded for resentencing as we concluded that the district court erred in applying the cross-reference for murder under the Guidelines. See United States v. Sellers, 512 F. App x 319, 330-32 (4th Cir.) (unpublished), cert. denied, 133 S. Ct. 2786 (U.S. 2013). 2 Prior to the resentencing hearing, James filed several objections to the presentence report, including objections to the drug weight; enhancements for his role in the offense and possession of applicable a firearm; offense responsibility. and level The the for district failure to court, the acceptance James reduce of however, declined to conduct a de novo sentencing hearing and adopted its previous findings on the issues that James had raised at the original sentencing hearing. total of life The court then again sentenced James to a imprisonment and James now appeals. For the reasons that follow, we affirm. James argues on appeal that the district court erred in failing to conduct a de novo resentencing hearing and failing to consider his Guidelines challenges, as this court s mandate did not indicate a limited remand. We review de novo the district the court s interpretation of mandate. States v. Susi, 674 F.3d 278, 283 (4th Cir. 2012). rule governs what issues the lower court is United The mandate permitted to consider on remand it is bound to carry out the mandate of the higher court, but may not reconsider issues the mandate laid to rest. any Id. further constrained Where a remand for resentencing fails to impose limitations, only vindictiveness, . by . . resentencing the the may proceed constitutional controlling 3 bar statutes, de novo, against and the Sentencing Guidelines. United States v. Broughton-Jones, 71 F.3d 1143, 1149 n.4 (4th Cir. 1995) (citing United States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993)). However, the mandate rule also prohibits litigation of issues decided by the district court but foregone on appeal or otherwise waived, for example because they were not raised in the district court. Susi, 674 F.3d at 283 (citation omitted). Moreover, under the mandate rule, any issue that could have been but was remanded. not raised on appeal is waived and thus not Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007) (internal quotation marks and citations omitted); see also S. Atl. Ltd. P ship of Tenn. v. Riese, 356 F.3d 576, 583 (4th Cir. 2004) (mandate rule forecloses litigation of issues decided by the district court but foregone on appeal or otherwise waived ) (internal quotation marks and citation omitted). Here, the issues James sought to raise on resentencing were all waived. With respect to his challenges to the drug weight and the firearm enhancement, he raised those challenges at the first sentencing hearing, but failed to raise them on appeal. They were thus not remanded to the district court. Chao, 511 F.3d at 465. See In addition, James failed to raise the remaining issues at the first sentencing hearing and likewise failed to raise them on appeal. also waived. Those arguments were therefore See Susi, 674 F.3d at 283. 4 We thus conclude that the district court did not err in declining to consider those arguments on resentencing following this court s remand of the sentence. Accordingly, we affirm the judgment of the district court. legal We dispense with oral argument because the facts and contentions are adequately presented in the materials before this court and argument would not aid in the decisional process. AFFIRMED 5