                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4955



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


ALONZO MACKINS, JR.,

                                            Defendant - Appellant.



                            No. 06-7581



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellant,

          versus


ALONZO MACKINS, JR.,

                                             Defendant - Appellee.



Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte.    Lacy H. Thornburg,
District Judge. (3:97-cr-00022; 3:04-cv-00510)


Submitted:   October 31, 2007              Decided:   June 20, 2008


Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
No. 06-4955 dismissed; No. 06-7581      vacated   and   remanded   by
unpublished per curiam opinion.


Richard B. Fennell, Jon P. Carroll, JAMES, MCELROY & DIEHL, P.A.,
Charlotte, North Carolina, for Alonzo Mackins, Jr. Gretchen C. F.
Shappert, United States Attorney, Charlotte, North Carolina, Amy E.
Ray, Assistant United States Attorney, Asheville, North Carolina,
for the United States.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Alonzo    Mackins   (“Mackins”)     was   charged      with   four    other

individuals, including his brother, Willie Mackins (“Willie”), with

one count of conspiracy to possess with intent to distribute

cocaine, cocaine base, heroin, and marijuana in violation of 21

U.S.C. § 846 (2000) and with one count of conspiracy to commit

money laundering in violation of 18 U.S.C. § 1956(h) (2000).                The

Government filed an information pursuant to 21 U.S.C.A. § 841(b)

(West 1999 & Supp. 2007), alleging that the conspiracy involved in

excess   of   1.5   kilograms   of   cocaine   base,   in    excess   of   five

kilograms of cocaine, and in excess of one kilogram of cocaine.

Mackins was found guilty by a jury and the district court sentenced

him to life imprisonment on the drug conspiracy offense and 240

months on the money laundering conspiracy offense.                    Although

Mackins objected to the presentence report calculation of drug

quantity, he did not object to the failure of the jury to find drug

quantity.     However, Willie argued at sentencing that the district

court’s attribution of drug quantity violated his constitutional

rights based on Apprendi v. New Jersey, 530 U.S. 466 (2000),

predecessor case law.

     Mackins appealed and challenged his sentence under Apprendi,

arguing that the district court erred in using specific drug

quantities to determine his sentence when no such quantities were

charged in the indictment or found by the jury, and without a


                                     - 3 -
finding of a specific drug quantity Mackins could only be subject

to a statutory maximum sentence of twenty-years.1                       The district

court sentenced him to life imprisonment based on its attribution

of drug quantity. This court found that the district court plainly

erred in enhancing Mackins’ sentence above the statutory maximum

based on the findings of the jury.              However, we declined to notice

the error, concluding it did not “seriously affect the fairness,

integrity, or public reputation of judicial proceedings” to warrant

notice because the record revealed “that the conspiracy charged

here indisputably involved quantities of cocaine and cocaine base

far in excess of the minimum amounts necessary to sustain the

sentence[]    pursuant     to    21    U.S.C.A.       §   841(b)(1)(A).”       United

States v. Mackins, 315 F.3d 399, 408 (4th Cir. 2003).

     Mackins filed a 28 U.S.C. § 2255 (2000) motion asserting

several    claims,   including         that     his       trial   counsel    rendered

ineffective assistance when he failed to object to the district

court’s determination of drug quantity that enhanced his sentence

beyond the statutory maximum applicable for the quantity of drugs

cited in the indictment.              He also argued that his counsel was

ineffective by failing to interview witnesses that would have

provided     exculpatory        evidence      regarding       whether       Government



     1
      The statutory maximum without regard to drug quantity was
twenty years.     However, due to Mackins’ prior felony drug
conviction, he would have been subject to a maximum sentence of
thirty years. See 21 U.S.C.A. § 841(b)(1)(C).

                                        - 4 -
witnesses were improperly coached and testified falsely against

him.     On January 4, 2006, the district court dismissed all of

Mackins’      claims,    with   the     exception    of     whether      counsel’s

representation     was    constitutionally       ineffective    based      on   his

failure to object to the district court’s finding on drug quantity

based on Apprendi predecessor law and, if so, whether United

States   v.    Booker,   543    U.S.   220     (2005),    applied   to    Mackins’

sentence.     The district court held an evidentiary hearing on this

claim.

       The district court determined that counsel did not provide

ineffective assistance of counsel because he was not aware that

Willie’s counsel raised Apprendi precursor arguments. However, the

district court held that Mackins was still entitled to relief under

Apprendi because the court was “unable to divine any difference

between the Petitioner’s case and that of [United States v. Hughes,

401 F.3d 540 (4th Cir. 2005)].”           The district court rejected the

Government’s contention that this court’s decision on the Apprendi

error was the law of the case and instead found that the Hughes

case conflicted with the court’s prior opinion and therefore

merited extraordinary relief due to a “complete miscarriage of

justice.”     The district court also held that even if Mackins was

not entitled to relief on the ineffective assistance of counsel at

sentencing claim, he would still be entitled to relief because his

sentence resulted in a substantive Sixth Amendment violation and


                                       - 5 -
also was “the result of a non-constitutional error which involves

‘a fundamental defect which inherently results in a complete

miscarriage of justice’ or is ‘inconsistent with the rudimentary

demands of fair procedure.’”          The district court vacated Mackins’

life sentence and entered an amended judgment reducing Mackins’

sentence to 360 months.         The Government filed a timely appeal of

the amended judgment.         Mackins filed a timely appeal of the order

dismissing the remaining § 2255 claims.

     Mackins appeals from the dismissal of his 28 U.S.C. § 2255

claim that counsel rendered ineffective assistance by failing to

interview witnesses who could impeach the credibility of government

witnesses.      An appeal may not be taken to this court from the final

order in a § 2255 proceeding unless a circuit justice or judge

issues a certificate of appealability.                28 U.S.C. § 2253(c)(1)

(2000).    A certificate of appealability will not issue absent “a

substantial showing of the denial of a constitutional right.”                    28

U.S.C. § 2253(c)(2) (2000).         A prisoner satisfies this standard by

demonstrating      that    reasonable    jurists      would      find    that   his

constitutional      claims    are   debatable   and    that   any       dispositive

procedural rulings by the district court are also debatable or

wrong.     See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);

Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d

676, 683 (4th Cir. 2001).            We have independently reviewed the

record    and   conclude     that   Mackins   has   not   made    the     requisite


                                      - 6 -
showing.    Accordingly, we deny a certificate of appealability and

dismiss Mackins’ appeal of the district court’s order denying in

part § 2255 relief.

     The district court determined that although Mackins did not

receive ineffective assistance of counsel,2 the Apprendi error

violated    his    Sixth   Amendment      right   to   a   jury   trial   on   drug

quantity.    It further held that Mackins would also be entitled to

relief     under     §     2255    because,       although    the      error    was

non-constitutional         and    non-jurisdictional,        it   constituted     a

fundamental defect which resulted in a complete miscarriage of

justice. The Government contends on appeal that the district court

erred because this court’s opinion on direct appeal constitutes the

law of the case on the Apprendi error and no exception applies to

disturb this court’s previous holding, Mackins is procedurally

defaulted from raising a Sixth Amendment claim, and Mackins is not

entitled to relief based on a non-constitutional claim analysis as

utilized by the district court because the claim is constitutional

in nature and even if the non-constitutional analysis did apply,

because    this    court   found    no    plain   error    requiring    notice,   a

complete miscarriage of justice did not result.

     The district court applied the law of the case doctrine in

analyzing the Apprendi claim.             Generally, “‘the doctrine [of the

law of the case] posits that when a court decides upon a rule of


     2
      Mackins does not contest this holding.

                                         - 7 -
law, that decision should continue to govern the same issues in

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

166 F.3d 655, 661 (4th Cir. 1999) (quoting Christianson v. Colt

Indus. Operating Corp., 486 U.S. 800, 815-16 (1988)).           The law of

the case must be applied:

     “in all subsequent proceedings in the same case in the
     trial court or on a later appeal . . . unless: (1) a
     subsequent   trial  produces  substantially  different
     evidence, (2) controlling authority has since made a
     contrary decision of law applicable to the issue, or
     (3) the prior decision was clearly erroneous and would
     work manifest injustice.”

Id. (quoting Sejman v. Warner-Lambert Co., 845 F.2d 66, 69 (4th

Cir. 1988)); see Invention Submission Corp. v. Dudas, 413 F.3d 411,

414-15 (4th Cir. 2005) (discussing “mandate rule,” which “is a more

powerful version of the law of the case doctrine and is based on

the principle that an inferior tribunal is bound to honor the

mandate of a superior court within a single judicial system,” and

exceptions   to   rule)   (internal   quotation   marks   and    citation

omitted), cert. denied, 126 S. Ct. 1024 (2006).

     Here, the district court relied on the second and third

exceptions to the law of the case doctrine.       We believe that the

Apprendi claim would be best addressed by our precedent dealing

with § 2255 instead of the law of the case doctrine.        See, e.g.,

Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976)

(defendant cannot relitigate issues previously rejected on direct

appeal); United States v. Roane, 378 F.3d 382, 396 n.7 (4th Cir.


                                 - 8 -
2004) (“Because the Defendants have not pointed to any change in

the law that warrants our reconsideration of these claims, we agree

with    the    district    court    that      they    cannot       relitigate     these

issues.”).

       The    district    court’s      rationale      for       granting    relief    and

reducing Mackins’ sentence relies entirely on its determination

that Hughes dictates an application of law directly in conflict

with our prior decision in Mackins’ direct appeal.                         The district

court held that our previous decision was clearly erroneous in

light    of   Hughes,     therefore     requiring          a    different    result   on

collateral review.        In so holding, the district court erred.

       In Hughes, we held that the defendant demonstrated that the

district court erred in enhancing his sentence under the then

mandatory Sentencing Guidelines based on facts not found by a jury

beyond    a   reasonable      doubt,    and   that     the       error   affected     his

substantial rights.         We noticed the error because the sentence

imposed was four times higher than that which would have been

proper based only on the quantity found by the jury and there was

no indication as to how the district court would have sentenced the

defendant under an advisory Guidelines scheme. Hughes, 401 F.3d at

555-56.        In   Hughes,    we   remanded         for       resentencing,    without

addressing the evidence supporting the enhancement or whether that

evidence was overwhelming or uncontroverted.




                                        - 9 -
     A year later in United States v. Smith, 441 F.3d 254, 272-73

(4th Cir. 2006), we held that overwhelming and uncontroverted

evidence supporting an enhancement negates noticing plain Booker

error.3    We reasoned that although the Sixth Amendment requires

that the jury, rather than the judge, find drug quantity since the

evidence of drug quantity was overwhelming and uncontroverted, upon

finding the defendant guilty of the offenses, unquestionably the

jury also found that the offenses involved the quantity charged in

the indictment.   Id. at 272-73.       In Smith, we specifically cited

United States v. Cotton, 535 U.S. 625, 632-34 (2002), in which the

Supreme Court held that when the evidence of a sentencing factor is

overwhelming and essentially uncontroverted, there is no basis for

noticing plain Booker error.

     The   district   court   relied   upon   the   dissent   in   Smith   in

reaching its decision that Hughes changed our plain error analysis.

It did not discuss the majority holding in Smith -- a holding that

directly conflicted with its contention that, had we decided

Mackins’ direct appeal applying the Hughes plain error review

standard, we would have noticed the error.           In sum, because the

district court erred in finding that Hughes changed this circuit’s

plain error analysis, Mackins cannot demonstrate a change in the

law warranting our reconsideration of the issue.          See Roane, 378


     3
      Smith issued before the district court entered its order
granting sentencing relief on the Apprendi claim and it was cited
by the district court.

                                 - 10 -
F.3d at 396 n.7. We therefore vacate the amended criminal judgment

and remand for the district court to reimpose the original life

sentence.

     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.



                                            No. 06-4955 DISMISSED
                                 No. 06-7581 VACATED AND REMANDED




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