                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4399


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BRIAN DARNELL HENDERSON, a/k/a B,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:07-cr-00023-RLV-DCK-2)


Submitted:   October 30, 2015             Decided:   November 20, 2015


Before WILKINSON, SHEDD, and AGEE, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


William D. Auman, AUMAN LAW OFFICES, Asheville, North Carolina,
for Appellant.     Amy Elizabeth Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      A jury convicted Brian Darnell Henderson of (1) conspiracy

to   possess      with    intent     to    distribute           at    least     50      grams    of

cocaine base and at least 5 kilograms of cocaine, in violation

of 21 U.S.C. § 846 (2012) (Count 1); (2) possession with intent

to distribute at least 50 grams of cocaine base, in violation of

21 U.S.C. § 841(a) (2012) (Count 3); (3) using and carrying a

firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c) (2012) (Count 4); and (4) possession of a

firearm    by     a     convicted        felon,      in    violation          of       18    U.S.C.

§§ 922(g)(1),         924(e)    (2006)      (Count        5).        The   district           court

imposed life sentences on Count 1 and 3, a concurrent 120-month

sentence     on       Count    5,   and     a       consecutive        mandatory            minimum

sentence   of      60    months     on    Count      4.     On       appeal,       we       affirmed

Henderson’s        conviction        and        sentence.              United           States v.

Henderson, 380 F. App’x 295, 296-97 (4th Cir. 2010) (No. 08-

5047).

      Subsequent to Henderson’s first appeal, we decided United

States v. Simmons, holding that a prior conviction qualifies as

a felony for sentencing enhancement purposes only if the prior

conviction        actually      exposed         that      defendant        to      a    term     of

imprisonment exceeding one year.                    649 F.3d 237, 241-45 (4th Cir.

2011) (en banc).              Henderson filed a 28 U.S.C. § 2255 (2012)

motion, seeking relief pursuant to Simmons.                           The district court

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granted       Henderson          relief          under          Simmons          by     vacating          his

conviction       in       Count        5        and       ordering             resentencing.              At

resentencing the district court imposed concurrent terms of 188

months    on    Count       1    and       3,    to       be     served        consecutive         to    the

mandatory minimum term of 60 months on Count 4.

       On appeal, Henderson’s counsel has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), asserting that

there    are    no    meritorious               issue          for    appeal,         but    questioning

whether (1) the district court erred in determining the drug

weight attributable to Henderson at sentencing; (2) the district

court erred in denying Henderson’s motion to suppress; (3) the

question of drug weight for sentencing purposes needed to be

submitted to a jury under Alleyne v. United States, 133 S. Ct.

2151    (2013);       and       (4)    Henderson’s               sentence         is     substantively

unreasonable         in     light      of        the       sentences            his     coconspirators

received.        Henderson         has      filed          a    pro       se   supplemental         brief,

raising       several       issues         identified                by   counsel,          as    well    as

asserting that the district court’s instruction to the jury on

Count 4 constructively amended the indictment.                                          We affirm in

part and dismiss in part.

       “For    sentencing         purposes,               the    government           must       prove    the

drug    quantity       attributable              to       a     particular            defendant      by    a

preponderance of the evidence.”                           United States v. Bell, 667 F.3d

431,    441    (4th       Cir.    2011).              When       determining            drug      quantity

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attributable to a defendant, “[w]here there is no drug seizure

or the amount seized does not reflect the scale of the offense,

the    court   shall     approximate      the   quantity        of    the     controlled

substance.”     U.S. Sentencing Guidelines Manual, § 2D1.1 cmt. n.5

(2013).     While a district court may rely on witness testimony to

approximate drug quantity, “when the approximation is based only

upon    uncertain      witness      estimates,       district          courts       should

sentence at the low end of the range to which the witness[]

testified.”      Bell, 667 F.3d at 441 (internal quotation marks

omitted).

       As    Henderson     did     not     object        to    the     drug     quantity

determination at resentencing, we review his argument on appeal

for plain error.         United States v. Strieper, 666 F.3d 288, 292

(4th Cir. 2012).       To satisfy the plain error standard, Henderson

must show (1) an error; (2) that is plain; (3) that affects

substantial rights; and (4) that seriously affects the fairness,

integrity or public reputation of judicial proceedings.                             United

States v. Olano, 507 U.S. 725, 731-32, 735-36 (1993).

       Under    the    applicable        version     of       the    U.S.     Sentencing

Guidelines Manual, a base offense level of 34 was appropriate if

the combined marihuana equivalency of the drugs attributable to

Henderson was “[a]t least 3,000 KG but less than 10,000 KG.”

USSG   §    2D1.1(c)(3)    (drug    quantity       table).           Even    discounting

testimony      disputed    by    Henderson         and    relying       on    the     drug

                                           4
quantities stipulated to by the Government with respect to the

execution      of     a    search      warrant        on    July     31,    2006,    the    record

contains      sufficient           evidence      to        support    the    conclusion        that

Henderson possessed an amount of powder cocaine and cocaine base

with a marihuana equivalence of at least 3000 KG.                                   See § 2D1.1

cmt. n.8.      Accordingly, we conclude that Henderson has not shown

any error that affected his substantive rights.

       Henderson’s          claim      regarding           his    motion     to     suppress     is

foreclosed      by        the   law    of   the       case.        “The     law   of    the    case

doctrine posits that when a court decides upon a rule of law,

that    decision          should      continue        to    govern    the    same      issues   in

subsequent stages in the same case.”                              United States v. Lentz,

524    F.3d    501,       528   (4th     Cir.     2008)       (internal      quotation        marks

omitted).       The doctrine applies to both subsequent proceedings

in the trial court and on a later appeal.                            Id.     We addressed and

rejected Henderson’s challenge to the district court’s denial of

his motion to suppress on his initial appeal, Henderson, 380 F.

App’x at 296-97, and we are bound by that ruling.

       Next,    Henderson           argues      that        the    district       court’s     drug

quantity determination at sentencing was invalid because it was

not submitted to a jury pursuant to Alleyne v. United States,

133 S. Ct. 2151 (2013).                 We reject this argument.                    The district

court’s        drug         quantity         determination             merely          controlled

Henderson’s Sentencing Guidelines range, and did not alter the

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statutory        minimum          sentenced      he     faced.         See      id.    at    2163

(acknowledging that Alleyne’s holding “does not mean that any

fact   that      influences         judicial      discretion        must       be   found    by    a

jury”).

       We    review         the    substantive        reasonableness           of   Henderson’s

sentence for plain error.                      Olano, 507 U.S. at 731-32, 735-36.

Substantive           reasonableness        is    determined         by     considering          the

totality of the circumstances, and if the sentence imposed falls

within      or   below       the    properly-calculated             Guidelines        range,      we

apply a presumption of reasonableness.                           United States v. Susi,

674 F.3d 278, 289 (4th Cir. 2012).                         Henderson has not rebutted

that presumption, and we conclude that the sentence imposed by

the district court is substantively reasonable.

       Turning         to    the    final       issue      raised     by       Henderson,        his

challenge        to    a    jury    instruction,        an    issue    not      raised      on    an

initial appeal is waived, Doe v. Chao, 511 F.3d 461, 465 (4th

Cir. 2007), and not subject to review on a second appeal.                                        Cf.

Omni Outdoor Advert., Inc. v. Columbia Outdoor Advert., Inc.,

974 F.2d 502, 505 (4th Cir. 1992).                             Accordingly, we dismiss

Henderson’s appeal with respect to his claim that the district

court’s      instruction           to    the    jury     on    Count       4    constructively

amended his indictment.

       In    accordance           with   Anders,      we     have   reviewed        the     entire

record in this case and have found no meritorious issues for

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appeal.     We therefore affirm Henderson’s conviction and sentence

and dismiss his appeal with respect to his challenge regarding

the district court’s jury instruction.          This court requires that

counsel inform Henderson, in writing, of the right to petition

the Supreme Court of the United States for further review.                 If

Henderson     requests   that   a    petition   be    filed,   but     counsel

believes that such a petition would be frivolous, then counsel

may   move     in    this   court     for   leave     to     withdraw     from

representation.      Counsel’s motion must state that a copy thereof

was served on Henderson.

      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 IN PART;
                                                           DISMISSED IN PART




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