     Case: 11-10665     Document: 00511888129         Page: 1     Date Filed: 06/15/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 15, 2012
                                     No. 11-10665
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

KIM JOE GRAVES, also known as K-Rock,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:05-CR-82-4


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Kim Joe Graves appeals the sentence imposed on
resentencing for his conviction for conspiracy to possess with intent to distribute
and to distribute 50 grams or more of a controlled substance. We affirm.
        Graves first contends that the district court erred by applying the career
offender enhancement under U.S.S.G. § 4B1.1.                    We review that court’s
application of the Guidelines de novo and review its factual findings are



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-10665

reviewed for clear error. See United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
      Under § 4B1.1, a defendant is a career offender if, inter alia, “the
defendant has at least two prior felony convictions of either a crime of violence
or a controlled substance offense.” § 4B1.1(a). The instant dispute turns on
whether Graves’s 1999 Texas conviction for delivery of a controlled substance
qualifies as a predicate offense for the career offender enhancement by
constituting a “controlled substance offense” under § 4B1.1(a). See § 4B1.2(b)
(defining “controlled substance offense” for purposes of § 4B1.1).
      The charging document and judgment for that conviction were admitted
into evidence at Graves’s resentencing. The charging document indicates that
Graves “intentionally and knowingly deliver[ed] by actual and constructive
transfer to L. O. Beals a controlled substance, namely cocaine.” Graves contends
that the charging document demonstrates that his conviction could have been
based merely on a constructive transfer of cocaine and that his case is governed
by United States v. Gonzales, 484 F.3d 712, 714-16 (5th Cir. 2007), because a
constructive transfer encompasses a mere offer to sell.
      His contention is unavailing. “The actual or constructive transfer of a
controlled substance is rationally understood to be distribution, which is
specifically included in the definition of a controlled substance offense set forth
in § 4B1.2.” United States v. Roberts, 255 F. App’x 849, 851 (5th Cir. 2007). As
Graves’s charging document indicates that he delivered the controlled substance
through actual or constructive delivery, and was not merely an offer to sell, the
district court did not err in determining that the conviction in dispute
constituted a controlled substance offense under § 4B1.1(a). See id.
      Graves also claims that the district court erred on resentencing by refusing
to consider the merits of his objections and arguments apart from the career
offender enhancement. “Whether the law of the case doctrine foreclosed the
district court’s exercise of discretion on remand and the interpretation of the

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                                  No. 11-10665

scope of this court’s remand order present questions of law that this court
reviews de novo.” United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004).
Ordinarily, under the law of the case doctrine, “an issue of fact or law decided on
appeal may not be reexamined either by the district court on remand or by the
appellate court on subsequent appeal.” Id. (internal quotation marks and
citation omitted). The mandate rule is “a specific application of the general
doctrine of law of the case.” Id. at 321 (internal quotation marks and citation
omitted).   “Absent exceptional circumstances, the mandate rule compels
compliance on remand with the dictates of a superior court and forecloses
relitigation of issues expressly or impliedly decided by the appellate court.” Id.
      Graves has not briefed any contention regarding the applicability of, or
any exception to, the law of the case doctrine or the mandate rule. See United
States v. Edwards, 303 F.3d 606, 647 (5th Cir. 2002) (recognizing that issues not
briefed are waived). Thus, he has not demonstrated any error regarding the
extent of the district court’s consideration of the sentencing issues that he raised
on resentencing.
      AFFIRMED.




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