UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4073

ANDREW SCOTT MORIN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-94-375-A)

Submitted: July 21, 1998

Decided: August 19, 1998

Before ERVIN, HAMILTON, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John Kenneth Zwerling, Lisa B. Kemler, ZWERLING & KEMLER,
P.C., Alexandria, Virginia, for Appellant. Helen F. Fahey, United
States Attorney, Vincent L. Gambale, Assistant United States Attor-
ney, William G. Otis, Senior Litigation Counsel, Alexandria, Vir-
ginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Andrew Scott Morin was convicted in 1995 of attempting to
arrange a murder for hire and sending a threatening communication
through the mail. Departing below the guideline range, the district
court imposed a sentence of 21 months imprisonment. Morin
appealed his conviction and the government appealed the sentence.
We vacated the sentence and remanded for resentencing. See United
States v. Morin, 80 F.3d 124 (4th Cir. 1996). On remand, the district
court again departed and imposed a sentence of 24 months imprison-
ment. The government again appealed and we again vacated the sen-
tence and remanded the case, directing the district court to impose a
sentence within the guideline range. See United States v. Morin, 124
F.3d 649 (4th Cir. 1997). At the second resentencing, Morin requested
a departure based on his rehabilitation, citing his good prison record
and efforts to improve his mental outlook and resume a normal life
after he was released. The district court found that a departure was
warranted on this ground, but that it lacked authority to depart
because our mandate directed a sentence within the guideline range.
The court imposed a sentence of 87 months imprisonment. Morin
appeals, contending that the district court erred in concluding that it
lacked authority to depart. Finding no error, we affirm.

When a district court exercises its discretion and refuses to depart,
its decision is not reviewable on appeal. See United States v. Bayerle,
898 F.2d 28, 31 (4th Cir. 1990). But when, as in this case, the court's
refusal to depart is based on a perception that it lacks legal authority
to depart, the defendant may appeal and we will review the court's
legal decision de novo. See United States v. Hall, 977 F.2d 861, 863
(4th Cir. 1992). At issue here is the "mandate rule," which forecloses
litigation in the district court of an issue decided by the appellate
court or forfeited because it was never raised in the district court. See
United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). The mandate rule

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applies when a case is remanded for resentencing. See United States
v. Apple, 962 F.2d 335, 337 (4th Cir. 1992). An exception to the man-
date rule gives the district court limited discretion to address a fore-
closed or forfeited issue in certain situations, including a dramatic
change in the controlling legal authority. See Bell, 5 F.3d at 67. Morin
argues that this exception permitted the district court to consider a
departure based on his "extraordinary rehabilitation" because a
change in the law of this circuit made that ground for departure avail-
able to him only after his second sentencing. See United States v.
Brock, 108 F.3d 31, 35 (4th Cir. 1997) (holding that United States v.
Van Dyke, 895 F.2d 984 (4th Cir. 1990), had been overruled by Koon
v. United States, 518 U.S. 81 (1996)).

We disagree. The change in law did not affect our holding in
United States v. Apple, 962 F.2d 335, 336-37 (4th Cir. 1992), that a
district court may not consider rehabilitative conduct which occurs
after the original sentencing in deciding to reduce a sentence previ-
ously imposed because such conduct is "not relevant to what was
potentially incorrect in the sentence the court originally imposed."
While Koon and Brock make a departure for extraordinary rehabilita-
tion available to a defendant being sentenced for the first time, all of
Morin's rehabilitative conduct occurred after the original sentence
was imposed and he began serving his prison term. Therefore, the dis-
trict court did not err in finding that a departure for extraordinary
rehabilitation was precluded and the mandate permitted only the
imposition of a sentence within the guideline range.

The sentence is accordingly affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

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