                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 00-4802
JOHN STEVEN LEROSE,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
     for the Southern District of West Virginia, at Charleston.
              Robert J. Staker, Senior District Judge.
                            (CR-99-80)

                      Submitted: March 30, 2001

                        Decided: May 1, 2001

   Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.



Affirmed in part and dismissed in part by unpublished per curiam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


                             COUNSEL

Benjamin L. Bailey, Leah Macia, BAILEY & GLASSER, L.L.P.,
Charleston, West Virginia, for Appellant. Rebecca A. Betts, United
States Attorney, Susan M. Arnold, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
2                      UNITED STATES v. LEROSE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   John Steven LeRose pleaded guilty to charges of executing, aiding
and abetting a scheme or artifice to defraud a financial institution, see
18 U.S.C.A. § 1344 (West 2000), and filing a false income tax return,
see 26 U.S.C.A. § 7206(1) (West 1989). The government appealed
the sentence, challenging the district court’s downward departures.
We concluded that the departures were improper and we therefore
vacated the sentence and remanded for resentencing. See United
States v. LeRose, 219 F.3d 335 (4th Cir. 2000). After remand, the dis-
trict court rejected LeRose’s challenges to the presentence investiga-
tion report and his requests for downward departures, and the court
sentenced LeRose to twenty-seven months imprisonment. LeRose
appeals.

   Preliminarily, we note that although the district court questioned
whether it had authority to consider the grounds for departure and
objections to the PSR that were advanced by LeRose for the first time
on remand, the court nonetheless fully considered the arguments on
the merits. While the district court ultimately rejected each argument,
the district court allowed argument on each issue and then adequately
explained its rulings. See United States v. Walker, 29 F.3d 908, 911
(4th Cir. 1994) (stating that "a sentencing court need not articulate a
finding as to disputed factual allegations with minute specificity" in
order to comply with Fed. R. Crim. P. 32(c)(1) and that "adopting the
PSR’s findings in toto is sufficient when the context of the ruling
makes clear that the district court intended . . . to rule on each of the
alleged factual inaccuracies" (internal quotation marks omitted)); see
also United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990).
Accordingly, we reject LeRose’s claim that the district court did not
really consider the arguments but instead perfunctorily denied them
so as to avoid reversal.
                       UNITED STATES v. LEROSE                          3
    LeRose challenges the district court’s denial of his requests for
downward departure based on extraordinary restitution and excep-
tional community service. As to the community service question,
because the district court recognized its authority to depart from the
guidelines but determined that a departure was not warranted, the
decision is not reviewable on appeal. See 18 U.S.C.A. § 3742(a)
(West 2000); United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.
1990) (explaining that the denial of a downward departure is not
appealable unless the district court acted under the misconception that
it lacked discretion to depart from the guidelines). We therefore dis-
miss the appeal insofar as it challenges the district court’s refusal to
depart downward based on LeRose’s community service.

   As to the restitution issue, the district court properly concluded that
reconsideration of that issue was barred by this court’s determination
in the first appeal that LeRose’s restitution efforts did not justify a
downward departure. See United States v. Bell, 5 F.3d 64, 66 (4th Cir.
1993) ("[I]t is indisputable that a lower court generally is bound to
carry the mandate of the upper court into execution and may not con-
sider the questions which the mandate laid at rest." (internal quotation
marks and alteration omitted)). The "new evidence" offered by
LeRose in support of this claim is insufficient to reopen an issue fully
considered and resolved by this court in the first appeal. See id. at 67
(noting that a lower court may reopen an issue decided on appeal
under "extraordinary circumstances," such as the surfacing of "signifi-
cant new evidence, not earlier obtainable in the exercise of due dili-
gence").

   LeRose next claims the district court erred when determining the
extent of loss under section 2F1.1(b)(1) of the United States Sentenc-
ing Guidelines Manual. We review a district court’s finding as to the
amount of loss attributable to criminal conduct for clear error. See
United States v. Castner, 50 F.3d 1267, 1274 (4th Cir. 1995). The dis-
trict court found that LeRose’s activities in the account over which he
had control were in furtherance of the check kiting scheme and that
the losses suffered by First Community Bank were foreseeable by
LeRose. See U.S.S.G. § 1B1.3(a)(1)(B); United States v. Gilliam, 987
F.2d 1009, 1012-13 (4th Cir. 1993) ("[I]n order to attribute to a defen-
dant for sentencing purposes the acts of others in jointly-undertaken
criminal activity, those acts must have been within the scope of the
4                      UNITED STATES v. LEROSE
defendant’s agreement and must have been reasonably foreseeable to
the defendant."). We find that attributing the total loss sustained by
the bank to LeRose was not clear error.

   LeRose next contends the district court erred when it rejected
LeRose’s argument that the offense level should be decreased because
LeRose was only a minor or minimal participant in the criminal activ-
ity. See U.S.S.G. § 3B1.2. A determination that a defendant was not
a minor or minimal participant will be overturned only if clearly erro-
neous. See United States v. White, 875 F.2d 427, 433-34 (4th Cir.
1989). The court’s findings concerning the extent to which LeRose
participated in and profited from the scheme are not clearly erroneous
and justify the denial of the reduction.

   In his pro se brief, LeRose reasserts the issues discussed above and
also contends that the increased sentence he received on remand was
constitutionally impermissible. See North Carolina v. Pearce, 395
U.S. 711, 725 (1969) (holding that due process requires that "vindic-
tiveness against a defendant for having successfully attacked his first
conviction must play no part in the sentence he receives after a new
trial"). The increased sentence was the result of this court’s conclu-
sion, after an appeal by the government, that the district court’s down-
ward departures were impermissible. LeRose’s vindictiveness
argument, therefore, is without merit.

  Finally, we have considered the Apprendi argument raised by
LeRose in his pro se brief and likewise find it to be without merit. See
United States v. Kinter, 235 F.3d 192, 202 (4th Cir. 2000), cert.
denied, 121 S. Ct. 1393 (2001).

   We therefore affirm the sentence imposed by the district court. We
dismiss that portion of the appeal challenging the district court’s
refusal to grant a downward departure based on LeRose’s community
service. 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 in the decisional process.

                       AFFIRMED IN PART, DISMISSED IN PART
