                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4790


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

ARMAND A. HAMMOND,

                  Defendant – Appellant,


DONNA C. ADKINS; ALISIA H. AKBAR; CHERYL L. AMAKER; LACARIA
BROWN; LUTHER BRYAN; CHASE MANHATTAN MORTGAGE CORPORATION;
LAVACA COUNTY TEXAS; RANDY MARTIN; GEORGEAN MCCONNELL;
JOSEPH E. MCCONNELL; CHRISTOPHER M. MORRIS; FLORENCE
NOLLKAMPER; GUSSIE D. NOLLKAMPER; JOHN M. WARTHER; WELLS
FARGO HOME MORTGAGE, INCORPORATED,

                  Parties-in-Interest.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.   Cameron McGowan Currie, District
Judge. (3:02-cr-00548-CMC-22)


Submitted:    April 27, 2009                  Decided:   May 15, 2009


Before WILLIAMS, Chief Judge, DUNCAN, Circuit Judge, and John
Preston BAILEY, Chief United States District Judge for the
Northern District of West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.
Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, Decatur,
Georgia, for Appellant.      W. Walter Wilkins, United States
Attorney, Jane B. Taylor, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              Armand          A.     Hammond        was        convicted       by     a     jury    of

conspiracy to distribute five kilograms or more of cocaine and

fifty grams or more of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1), 846 (2006), and was sentenced to 360 months in

prison.           Hammond          appealed,        challenging          his       conviction      and

sentence.         We affirmed Hammond’s conviction and rejected claims

relating to his sentence, but because he was sentenced under the

then-mandatory Sentencing Guidelines, vacated and remanded for

resentencing consistent with United States v. Booker, 543 U.S.

220    (2005).          See     United       States       v.    Davis,       270    F.    App’x    236

(4th Cir. March 17, 2008) (unpublished).

              On     remand,         the     district          court    imposed       a     300-month

variant sentence and Hammond timely appealed.                                   Hammond asserts

that    the       district         court     erred       when    it     determined          that   the

mandate rule barred it from reconsidering whether he incorrectly

received      a    21    U.S.C.         §   851    (2006)       enhancement         and     that   the

district      court       procedurally             erred        in     imposing       his      variant

sentence.          Finding         no   error,      we    affirm       the     district        court’s

judgment.

              We        reject          Hammond’s         challenges           to        his     § 851

enhancement because these challenges could have been litigated

on    Hammond’s         first       appeal        but    were    not.          Accordingly,        the

district court correctly refused to revisit the issue during

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Hammond’s remand proceeding.                 See United States v. Bell, 5 F.3d

64,    66    (4th     Cir.   1993)          (stating    that     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.”); see also Volvo

Trademark Holding Aktiebolaget v. Clark Mach. Co., 510 F.3d 474,

481 (4th Cir. 2007) (“[A] remand proceeding is not the occasion

for raising new arguments or legal theories.”).

             “[T]he doctrine [of the law of the case] 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. Aramony, 166 F.3d 655, 661 (4th

Cir. 1999) (internal citation and quotation marks omitted).                          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. (internal citation and quotation marks omitted); see Doe v.

Chao, 511 F.3d 461, 464-66 (4th Cir. 2007) (discussing mandate

rule   and    its    exceptions).           Hammond’s    challenges      do   not    fall

within any of the above-mentioned exceptions.

             Although     Hammond       suggests       that    the     district     court

should      have    conducted      a   de     novo     hearing    on    remand,     this

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assertion is meritless.             In affirming Hammond’s convictions, we

explicitly rejected Hammond’s and his co-conspirators’ numerous

objections to their sentences.                    We nonetheless vacated most of

the appellants’ sentences, noting that we were doing so solely

because the sentences were imposed under a pre-Booker mandatory

Guidelines     regime.           See     Davis,       270    F.      App’x      at     248-49.

Accordingly, this court’s mandate remanding Hammond’s case for

resentencing       limited      the     district       court      to      considering       the

Guidelines range we upheld, along with the § 3553(a) factors,

Amendment     706,        and   the     crack-to-powder            cocaine       sentencing

disparity, if applicable, to fashion an appropriate sentence.

See id. at 248-49, 256 n.16.

             We also affirm the district court’s 300-month variant

sentence.          After        Booker,       a      sentence        is       reviewed      for

reasonableness, using an abuse of discretion standard of review.

Gall v. United States, 128 S. Ct. 586, 597 (2007).                                The first

step   in   this     review     requires       the     court      to    ensure       that   the

district     court        committed      no       significant          procedural      error.

United   States      v.    Evans,      526    F.3d    155,     161     (4th     Cir.   2008).

Assuming the district court committed no significant procedural

error,      this     court       must        next     consider          the     substantive

reasonableness of the sentence imposed, taking into account the

totality of the circumstances.                Id. at 161-62.



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             While the court on appeal may presume that a sentence

within the Guidelines range is reasonable, it may not presume

that a sentence outside the Guidelines range is unreasonable.

Gall, 128 S. Ct. at 597; see United States v. Abu Ali, 528 F.3d

210, 261 (4th Cir. 2008) (“[A] sentence that deviates from the

Guidelines    is       reviewed   under   the     same     deferential      abuse-of-

discretion standard as a sentence imposed within the applicable

guidelines    range.”),       cert.     denied,    129     S.   Ct.    1312    (2009).

Rather, in reviewing a sentence outside the Guidelines range,

the court “consider[s] the extent of the deviation, but must

give due deference to the district court's decision that the

§ 3553(a)    factors,        on   a   whole,     justify    the   extent       of    the

variance.”        Gall, 128 S. Ct. at 597.           Even if this court would

have    imposed    a    different     sentence,    this    fact   alone       will   not

justify vacatur of the district court’s sentence.                     Id.

             On    remand,    the     district    court     considered      Hammond’s

Guidelines range, heard counsel’s argument regarding the weight

that should be afforded the § 3553(a) factors, allowed Hammond

an     opportunity      to   allocute,     and    thoroughly      considered         the

§ 3553(a) factors before imposing Hammond’s sentence.                          We find

that the district court adequately explained its rationale for

imposing the variant sentence and that the reasons relied upon

by the district court are valid considerations under § 3553(a)



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and   justify   the     sentence   imposed.        United    States     v.    Pauley,

511 F.3d 468, 473-76 (4th Cir. 2007).

            Based on the foregoing, we affirm the district court’s

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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