                        UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                            No. 02-4013
WILBERT ANTHONY NEAL,
             Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                            No. 02-4014
RONALD CHRISTOPHER NEAL,
              Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                            No. 02-4095
FREDERICK ANTHONY CARGILL,
              Defendant-Appellant.
                                       
           Appeals from the United States District Court
     for the Middle District of North Carolina, at Greensboro.
                James A. Beaty, Jr., District Judge.
                            (CR-94-300)

                  Submitted: February 13, 2003
                      Decided: May 27, 2003

       Before WILKINS, Chief Judge, and WIDENER and
                 MICHAEL, Circuit Judges.
2                       UNITED STATES v. NEAL
Affirmed by unpublished per curiam opinion.


                             COUNSEL

Anne R. Littlejohn, Greensboro, North Carolina, for Appellant Wil-
bert Neal; John J. Korzen, ANDERSON, KORZEN & ASSO-
CIATES, P.C., Kernersville, North Carolina, for Appellant Cargill;
James B. Craven, III, Durham, North Carolina, for Appellant Ronald
Neal. Anna Mills Wagoner, United States Attorney, Clifton T. Bar-
rett, Assistant United States Attorney/Chief, Criminal Division, L.
Patrick Auld, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit.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


                             OPINION

PER CURIAM:

   Wilbert Anthony Neal (known as Anthony Neal), Ronald Neal, and
Frederick Cargill appeal from their twenty-year prison sentences for
conspiracy to distribute cocaine base. Their main argument is that the
district court on resentencing should have reassessed their base
offense levels because the drug quantity findings were based in part
on testimony from a witness who testified falsely on other matters.
Because the record contains other, untainted evidence sufficient to
support the drug quantity findings, we reject this argument. We also
reject as moot the defendants’ request to see (in the event of remand)
the presentence reports of two government witnesses who testified at
resentencing. Finally, we reject Ronald Neal’s appeal from the district
court’s failure to depart downward based on his rehabilitation efforts
after the original sentencing. We therefore affirm.
                         UNITED STATES v. NEAL                          3
                                    I.

   In their last appeal we vacated the defendants’ sentences and
remanded for resentencing on three grounds. First, we concluded that
the district court had applied a weapon enhancement to Anthony
Neal’s sentence based solely on facts established by the testimony of
Lee Marvin Settle, who had testified falsely on other matters. We
instructed the court to reconsider the enhancement and determine
whether Settle’s testimony was sufficiently reliable to support this
enhancement. Second, we concluded that the district court had
applied a weapon enhancement to Cargill’s sentence based on a
clearly erroneous factual finding. We therefore instructed the district
court to resentence Cargill without the enhancement. Third, we held
that in light of Apprendi v. New Jersey, 530 U.S. 466 (2000); United
States v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc); and United
States v. Cotton, 261 F.3d 397 (4th Cir. 2001), rev’d 535 U.S. 625
(2002), the defendants could only be sentenced to a maximum of
twenty years. Our remand instructions said that they were to "be sen-
tenced to a term of imprisonment not to exceed twenty years." United
States v. Cargill, 2001 WL 1019312, at *20 (4th Cir.).

   In this appeal the defendants point to another aspect of their sen-
tences — drug quantity findings — that they claim was tainted by
Settle’s discredited testimony. Each was determined to have pos-
sessed quantities of cocaine base in excess of 1.5 kilograms, yielding
a base offense level of 38. See U.S. Sentencing Guidelines Manual
§ 2D1.1 (1995). They argue that without Settle’s testimony they can-
not be tied to sufficient quantities of drugs to justify level 38. The
defendants argued at resentencing that drug quantity amounts had to
be recalculated without reference to Settle’s testimony. The district
court refused to consider this argument, saying that our remand
instructions required it to reconsider the weapon enhancements and to
sentence within the twenty-year maximum, but did not allow it to
reach any other issues.

   Our mandate did not touch upon the question of drug quantities.
Under the "mandate rule," "a lower court generally is ‘bound to carry
the mandate of the upper court into execution and [may] not consider
the questions which the mandate laid at rest.’ . . . In addition, the rule
forecloses relitigation of issues decided by the district court but fore-
4                       UNITED STATES v. NEAL
gone on appeal." United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993)
(alteration in original) (quoting Sprague v. Ticonic Nat’l Bank, 307
U.S. 161, 168 (1939)). "[W]here an issue was ripe for review at the
time of an initial appeal but was nonetheless foregone, the mandate
rule generally prohibits the district court from reopening the issue on
remand unless the mandate can reasonably be understood as permit-
ting it to do so." United States v. Ben Zvi, 242 F.3d 89, 95 (2nd Cir.
2001) (citing Bell).

   In the last appeal the government challenged the district court’s
grant of a new trial. If the government had lost its appeal, the new
trial would have proceeded, and any objections the defendants had to
their original sentences would have been moot. However, once we
decided to reverse the order granting a new trial, we considered the
defendants’ cross-appeals. Anthony Neal, for example, successfully
cross-appealed his weapon enhancement on the basis of the unreli-
ability of Settle’s testimony. That issue was available and ripe, and
we decided it. The defendants are now rechallenging their sentences
on the same ground, that is, on the basis of Settle’s discredited testi-
mony. The effect of Settle’s testimony on the district court’s drug
quantity findings could have been raised in the last appeal because the
issue was just as available and ripe as was the issue of the testimony’s
effect on the weapon enhancement. Because the issue of any Settle
taint on the drug quantity calculation was ripe but not raised the last
time, it should be precluded by the mandate rule unless there are
extraordinary circumstances. See Bell, 5 F.3d at 67.

   No extraordinary circumstances are present in this case. There was
sufficient evidence beyond Settle’s testimony to connect each defen-
dant to more than 1.5 kilograms of cocaine base. The defendants were
convicted of drug-distribution conspiracy; each "is accountable for all
quantities of contraband with which he was directly involved and . . .
all reasonably foreseeable quantities of contraband that were within
the scope of the criminal activity that he jointly undertook." U.S. Sen-
tencing Guidelines Manual § 1B1.3 cmt. n.2 (1995). See also United
States v. Vinson, 886 F.2d 740, 742-43 (4th Cir. 1989). Testimony
from several witnesses other than the discredited Settle establishes
that the conspiracy handled well over 1.5 kilograms of cocaine base.
In the last appeal another conspirator who is not currently before us,
Christopher Neal, challenged the drug quantity attributed to him. We
                         UNITED STATES v. NEAL                          5
concluded that just the drugs recovered during arrests of various con-
spirators added up to more than 1.5 kilograms and "were reasonably
foreseeable to him within the scope of the conspiracy." Cargill, 2001
WL 1019312, at *19 (quotation marks omitted). This conclusion is
equally applicable to Anthony Neal, Ronald Neal, and Cargill. With-
out considering Settle’s testimony, enough drugs are attributable to
each defendant through the conspiracy to justify a base offense level
of 38. There was therefore no reason for the district court to recalcu-
late drug quantities, regardless of whether our mandate allowed it to
do so. In short, the district court did not err in refusing to revisit the
defendants’ base offense levels.

                                   II.

  The defendants raise two other claims, neither of which has merit.
They argue that in the event we remand for resentencing, the district
court should be required to order the government to produce the pre-
sentence reports of two government witnesses at sentencing. Because
we will not be remanding, the request is moot.

   Finally, Ronald Neal objects to the district court’s denial of a
downward departure based on his rehabilitation between the original
sentencing and resentencing. A district court’s discretionary refusal to
depart downward is not appealable. United States v. Bayerle, 898 F.2d
28, 30-31 (4th Cir. 1990). Here, the district court was without author-
ity to base a departure on events occurring after the original sentenc-
ing. See Bell, 5 F.3d at 67; United States v. Apple, 962 F.2d 335, 336-
37 (4th Cir. 1992). It appears, however, that the district court might
have believed that it had the discretion to consider a departure in these
circumstances. Ronald Neal seizes on this possible confusion and
couches his argument in terms of whether the district court had the
authority to depart downward. A defendant may appeal the question
of whether the district court has authority to depart. Bayerle, 898 F.2d
at 31; see also Apple, 962 F.2d at 336-37 (entertaining such an
appeal). Neal’s substantive argument, however, is without merit. Bell
and Apple make clear that rehabilitation following the original sen-
tence is not a ground for downward departure at resentencing. (The
Sentencing Commission has recently codified this rule in the Guide-
lines. U.S. Sentencing Guidelines Manual § 5K2.19 (2002).) There
6                       UNITED STATES v. NEAL
was therefore no error in the district court’s ultimate decision not to
depart.

                                  III.

    The sentences imposed by the district court are affirmed.

                                                          AFFIRMED
