                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4392


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

KAD CARSON ELSWICK,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.      James P. Jones, Chief
District Judge. (1:04-cr-00091-jpj-pms-1)


Submitted:    January 11, 2010              Decided:   February 5, 2010


Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael A. Bragg, BRAGG LAW, PLC, Abingdon, Virginia, for
Appellant.   Julia C. Dudley, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Kad    Carson    Elswick     was     convicted      by    a     jury   of

possession       with   intent    to    distribute       methamphetamine,          in

violation    of   21    U.S.C.   § 841(a)(1),       (b)(1)(C)    (2006)      (“Count

One”), being a felon in possession of a firearm, in violation of

18 U.S.C. §§ 922(g)(1), 924(e) (2006) (“Count Two”), using and

carrying a firearm during and in relation to, and possessing a

firearm     in    furtherance    of,    a    drug    trafficking          crime,   in

violation    of    18   U.S.C.   § 924(c)      (2006)    (“Count     Three”),      and

failing to appear before a court, in violation of 18 U.S.C.

§ 3146(a)(1)      (2006)    (“Count     Four”).          The    district       court

designated Elswick an armed career criminal — a finding that was

not disputed at his first sentencing or in his first appeal —

and sentenced him to 248 months’ imprisonment, which consisted

of 180 months on Counts One and Two (concurrent), sixty months

on Count Three (consecutive), and eight months on Count Four

(consecutive).

            Elswick      appealed,     and     in   an    unpublished        opinion

following oral argument, we affirmed Elswick’s convictions and

sentences relevant to Counts One and Two, but reversed both the

conviction and sentence as to Count Three. 1                   United States v.


     1
       Because Elswick did not appeal Count Four, we did not
review the conviction underlying that count or the resulting
judgment.   Accordingly, the conviction on Count Four and the
(Continued)
                                        2
Elswick, 306 F. App’x 8, 11-14 (4th Cir. 2008) (No. 06-4693).

Our opinion reflected the following remand order: “[W]e affirm

Elswick’s conviction and sentence as to Counts One and Two, and

we   reverse        and    remand     with       respect        to    Count     Three      for

resentencing in accordance with this opinion.”                         Id. at 14.

              At resentencing, Elswick challenged his armed career

criminal status.           Citing Shepard v. United States, 544 U.S. 13

(2005), and United States v. Washington, 404 F.3d 834 (4th Cir.

2005), Elswick asserted that relying on outside documentation to

make factual determinations regarding whether his prior burglary

and escape convictions qualified toward the enhancement violated

his Sixth Amendment rights.              Counsel conceded his position was

not predicated on an intervening change in the law.

              The    district       court        found     our       mandate       permitted

resentencing        only    as   to   Count       Three     —    the     only      count   of

conviction that was reversed.                The district court further found

none of the exceptions to the mandate rule applied, because the

basis for Elswick’s argument was “apparent . . . from the time

of   the   original        sentencing        through      the        Court    of    Appeals’

decision” and there had been no change in the relevant law.

Thus,   the    district      court     overruled         Elswick’s       objections        and



corresponding eight-month consecutive sentence remained intact
after issuance of our first opinion.



                                             3
sentenced him to 188 months’ imprisonment, consisting of 180

months   on    Counts   One   and    Two       (concurrent)     and    eight    months

consecutive on Count Four.

              Elswick subsequently filed a “motion to stay entry of

judgment, for vacation of any judgment already entered, and for

reconsideration.”        Elswick argued that, under United States v.

Bell, 5 F.3d 64, 67 (4th Cir. 1993), the district court could

consider      his   argument,      because      doing    so    would     remedy     the

“blatant error” of designating him an armed career criminal and

its resulting “serious injustice.”                    The district court denied

the motion.     Elswick timely noted this appeal.

              On appeal, Elswick continues to advance his position

that this court’s mandate did not preclude the district court

from   resentencing     him   de    novo.        In    the   alternative,       Elswick

argues that two of the three Bell exceptions to the mandate rule

apply: first, that Begay v. United States, 553 U.S. 137 (2008),

and United States v. Roseboro, 551 F.3d 226 (4th Cir. 2009),

dramatically        changed   the     law       regarding      whether      a     prior

conviction counts toward the armed career criminal designation;

and second, that designating him an armed career criminal was a

“blatant error” that resulted in “serious injustice.”

              We review de novo the district court’s interpretation

of our mandate.         Volvo Trademark Holding Aktiebolaget v. Clark

Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007).                    The mandate rule

                                           4
“forecloses          relitigation       of    issues      expressly       or     impliedly

decided      by    the     appellate    court,”      and       “litigation      of     issues

decided by the district court but foregone on appeal.”                               Bell, 5

F.3d at 66.

               The     district     court      correctly         concluded      that      our

mandate foreclosed consideration of Elswick’s contention that he

was improperly designated an armed career criminal.                            Our opinion

affirmed     Elswick’s       conviction       and    sentence       relevant      to    Count

Two;    thus,        the     propriety       of     the    armed      career      criminal

designation        was     impliedly     decided.          Id.      Moreover,        as   the

district court repeatedly noted, because Elswick did not appeal

the    armed      career     criminal    designation           in   his   first      appeal,

consideration of it on remand was prohibited.                         See Doe v. Chao,

511 F.3d 461, 465 (4th Cir. 2007) (“[A]ny issue that could have

been   but     was     not   raised     on   appeal       is     waived   and     thus    not

remanded.”) (internal quotation marks omitted).

               We further conclude none of the recognized exceptions

to the mandate rule apply here.                     “Deviation from the mandate

rule is permitted . . . (1) when controlling legal authority has

changed    dramatically;          (2)   when      significant       new   evidence,       not

earlier obtainable in the exercise of due diligence, has come to

light; and (3) when a blatant error in the prior decision will,

if uncorrected, result in a serious injustice.”                                Id. at 467

(internal quotations marks omitted).

                                              5
                  Elswick first contends the law relevant to determining

whether          a    prior     conviction         counts        toward    the      armed   career

criminal         designation          has    dramatically         changed       since    his    2006

sentencing.                 However, Elswick did not assert this particular

contention            in     the     district      court,        where    he     instead    relied

exclusively on the third exception to the mandate rule.                                        Thus,

Elswick has waived this particular claim by failing to raise it

in the district court.                      United States v. Evans, 404 F.3d 227,

236 n.5 (4th Cir. 2005).                          We decline to consider the issue

despite              this     waiver        because         we     find        no     “exceptional

circumstances” exist.                  Williams v. Prof’l Transp. Inc., 294 F.3d

607, 614 (4th Cir. 2002); Muth v. United States, 1 F.3d 246, 250

(4th Cir. 1993).

                 Lastly,        we    reject      as    meritless         Elswick’s      assertion

that,       in       designating       Elswick         an   armed    career         criminal,     the

district         court        committed       a    “blatant       error”       that     yielded    a

“serious injustice.”                  There can be no “serious injustice” when

Elswick did not challenge this ruling in his first appeal. 2                                    Doe,

511 F.3d at 468.




        2
       Begay was issued on April 16, 2008; this court heard oral
argument in Elswick’s first appeal on October 31, 2008.    Thus,
Elswick could have raised this issue in a letter to the court
pursuant to Fed. R. App. P. 28(j).



                                                    6
           For   the    foregoing   reasons,   we   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 the court and argument would not aid the

decisional process.

                                                                    AFFIRMED




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