                             UNPUBLISHED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                   Decided:   June 24, 2011


Before MOTZ and    WYNN,    Circuit   Judges,    and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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    (West   1999    &    Supp.   2010),     and     two    counts     of

possession     with   intent   to    distribute   fifty    grams       or   more   of

cocaine base, in violation of 21 U.S.C. § 841(a)(1).                         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Everhart, 166 F. App’x 61 (4th Cir. 2006) (unpublished).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.           Everhart appealed, and this court

affirmed.      See United States v. Everhart, 245 F. App’x 316 (4th

Cir.   2007)     (unpublished),       vacated,    552     U.S.    1292      (2008).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      sentence      and

remanded the case to the district court.                        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:                  (1) that he was not subject to

the    penalty        provisions    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      the    same

chemical composition (“rule of lenity argument”).                            The district

court rejected these arguments, but granted Everhart a three-

level      downward      variance    due     to   the       disparity       in    sentencing

between him and his co-defendant.                     The court sentenced Everhart

to 235 months’ imprisonment.

       1
           Kimbrough v. United States, 552 U.S. 85 (2007).



                                             3
               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    mandate   rule     “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.”           United States v. Bell, 5 F.3d 64, 66 (4th Cir.

1993).     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,    and   crack    specificity

arguments in his first direct appeal.                       Further, these arguments

                                              4
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.                     See id.

at 467.     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,       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




     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.



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