                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4707


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CLEVO SHUFF,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
Chief District Judge. (3:09-cr-00008-FDW-1)


Submitted:   April 29, 2013                 Decided:   July 18, 2013


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Randolph Marshall Lee, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Melissa L. Rikard,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Clevo Shuff was convicted after a jury trial of one

count of conspiracy to distribute and to possess with intent to

distribute at least fifty grams of cocaine base and aiding and

abetting,     in    violation    of       18    U.S.C.       § 2   (2006),   21     U.S.C.A.

§ 841(b)(1)(A) (West 2006 & Supp. 2012), and 21 U.S.C. § 846

(2006)   (count      one),     one    count        of    possession    with       intent   to

distribute at least five grams of cocaine base and aiding and

abetting,     in     violation       of    18      U.S.C.      § 2    and    21     U.S.C.A.

§ 841(a),     (b)(1)(B)      (count       two),     and      one   count    of    using    and

carrying a firearm during and in relation to a drug trafficking

crime, in violation of 18 U.S.C. § 924(c) (2006) (count three).

On   remand        following     this          court’s        affirmance      of     Shuff’s

convictions and sentence on count three and vacatur of Shuff’s

sentences on counts one and two, * the district court imposed an

upward variance from the Guidelines range of 130 to 162 months’

imprisonment       and   sentenced        Shuff         to   concurrent     terms    of    240




     *
       United States v. Shuff, 470 F. App’x 158, 162 (4th Cir.
2012)   (No.   11–4426)   (holding that   Shuff’s   prior   state
convictions were not punishable by terms of imprisonment
exceeding one year and thus were not proper predicates for
purposes of 21 U.S.C.A. § 841(b)(1)(A) and the career offender
Sentencing Guideline and vacating Shuff’s life sentence on count
one   and    career-offender-based sentence   of   360    months’
imprisonment on count two).



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months’     imprisonment.                 On      appeal,        Shuff       challenges        these

sentences.      We affirm.

            We       review         the    district        court’s         sentence,     “whether

inside, just outside, or significantly outside the Guidelines

range,”     under         a     “deferential           abuse-of-discretion             standard.”

Gall v. United States, 552 U.S. 38, 41 (2007).                                This standard of

review    involves            two   steps;       under     the      first,     we    examine     the

sentence     for      significant               procedural       errors,       and     under     the

second,      we           review          the      substance           of      the      sentence.

United States v.              Pauley,      511     F.3d      468,    473     (4th    Cir.      2007)

(examining Gall, 552 U.S. at 50-51).                                Significant procedural

errors include “failing to calculate (or improperly calculating)

the   Guidelines          range,      treating         the    Guidelines        as     mandatory,

failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors,

selecting       a    sentence         based       on    clearly        erroneous       facts,    or

failing to adequately explain the chosen sentence — including an

explanation         for       any    deviation         from      the       Guidelines     range.”

Gall, 552 U.S. at 51.                     If there are no significant procedural

errors, we then consider the substantive reasonableness of the

sentence,       “tak[ing]            into         account        the        totality     of     the

circumstances.”            Id.

            When the district court imposes a variant sentence, we

consider    “whether            the . . . court           acted      reasonably        both    with

respect    to       its    decision        to     impose     such      a    sentence    and     with

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respect    to    the    extent      of   the    divergence       from       the   sentencing

range.”        United States v. Hernandez-Villanueva, 473 F.3d 118,

123 (4th Cir. 2007).              Such a sentence is unreasonable if the

district       court    “relie[d]        on    improper    factors          in    imposing   a

sentence    outside       the     properly         calculated    advisory         sentencing

range.”    Id.

               After review of the record and the parties’ briefs, we

reject    as     without      merit      Shuff’s      argument       that    the    district

court’s consideration on remand of the drug quantity involved in

his   offenses     and     his    role    with      respect     to    his    co-defendant—

matters on which the Government relied in part in arguing for an

upward variance from the Guidelines range—violated the mandate

rule.      The    mandate        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.”                United States v. Bell, 5 F.3d 64, 66

(4th Cir. 1993).         Shuff and the Government, however, lacked the

opportunity or incentive to raise these issues in his initial

appeal or in a cross-appeal because the district court initially

sentenced       Shuff    to   the     then-statutorily-required                  sentence    of

life imprisonment on count one, 21 U.S.C.A. § 841(b)(1)(A), and

a career-offender-based-sentence on count two.                          Accordingly, the

mandate rule did not bar the district court’s consideration of

                                               4
these    matters         on     remand.           See    United       States      v.     Quintieri,

306 F.3d      1217,           1229-30      (2d    Cir.        2002)    (“[I]f      a     sentencing

determination had no practical effect on a . . . sentence at the

original sentencing but becomes relevant only after appellate

review,       a     [party]          is    free     to        challenge       that       sentencing

determination on remand, and ultimately on reappeal, despite the

failure to challenge that determination initially.”); cf. Omni

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.” (internal quotation marks omitted)).

              Shuff           also    challenges          his       sentences      as     otherwise

procedurally         unreasonable            and    as        substantively        unreasonable.

We reject         these        contentions        as     well.         Considered         in    their

totality,         Shuff’s        arguments          in     support       of       his     claim    of

procedural error and his second argument supporting his claim of

substantive error amount to a claim that the 240-month sentences

are unreasonable because the district court violated the mandate

rule in considering the drug quantity involved in his offenses,

his role relative to his co-defendant, and his criminal history

as part of its analysis under 18 U.S.C. § 3553(a).                                   However, the

mandate       rule        did        not    prohibit          the     district          court     from

considering these matters in arriving at a sentence that was

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sufficient,       but   not    greater      than    necessary,         to    comply   with

§ 3553(a)’s sentencing objectives, and Shuff does not identify

any other rule of sentencing procedure prohibiting the district

court from considering these issues on remand or suggest that

the facts the court relied on in imposing the variant sentences

were clearly or otherwise erroneous.

             Additionally,         at           sentencing        on         remand—after

calculating       Shuff’s     Guidelines     range,      hearing       his   allocution,

and hearing argument from counsel—the district court concluded

that an upward variance under 18 U.S.C. § 3553(a) to concurrent

terms of 240 months’ imprisonment was necessary to achieve the

purposes     of    sentencing.         In    reaching      this    conclusion,        the

district court properly considered the nature and circumstances

of Shuff’s offense conduct and the sentencing range established

by the Guidelines, § 3553(a)(1), (4)(A), making note of Shuff’s

expressed    threat      to   shoot    police       officers,     the       drug   amounts

involved in his offenses, and Shuff’s role with respect to his

co-defendant.           The    court    also       properly     considered         Shuff’s

history and characteristics and the need for the sentence to

deter Shuff and to protect the public, § 3553(a)(1), (2)(B)-(C),

addressing        on    the    record       Shuff’s      criminal           history    and

rehabilitation          efforts         following          initial           sentencing.

The district       court’s     consideration        of   the    relevant       18 U.S.C.

§ 3553(a) factors and articulation of its reasons for varying

                                            6
from the Guidelines range support our decision to defer to its

determination        as     to   the   extent      of    the   variance.         See     United

States     v.      Diosdado-Star,       630       F.3d    359,    366-67         (4th    Cir.)

(affirming substantive reasonableness of variance sentence six

years greater than Guidelines range because sentence was based

on the district court’s examination of the § 3553(a) factors),

cert. denied, 131 S. Ct. 2946 (2011); see also United States v.

Angle, 598 F.3d 352, 359 (7th Cir. 2010) (“All that matters is

that    the     sentence     imposed    be    reasonable         in    relation         to   the

‘package’ of reasons given by the court.”).

              We    therefore      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   this       court    and   argument       would    not    aid      the    decisional

process.



                                                                                    AFFIRMED




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