                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4467


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DERRICK JOMELL PERRY, a/k/a Mel,

                Defendant – Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:06-cr-00082-FL-1)


Submitted:   April 28, 2011                   Decided:   May 13, 2011


Before WILKINSON, AGEE, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Rudolph A. Ashton, III, MCCOTTER, ASHTON & SMITH, P.A., New
Bern, North Carolina, for Appellant.     George E. B. Holding,
United States Attorney, Jennifer P. May-Parker, Brian S. Meyers,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              A jury convicted Derrick Jomell Perry of distribution

of more than five grams of crack cocaine, 21 U.S.C. § 841(a)(1)

(2006)      (count    two),        possession        with    intent        to     distribute

marijuana,        21 U.S.C. § 841(a)(1) (count five), and possession

of a firearm in furtherance of a drug trafficking crime, 18

U.S.C. § 924(c)(1)(A)(i) (2006) (count six).                        Perry received a

170-month        sentence     on     count     two,     a   concurrent           sixty-month

sentence on count five, and a consecutive sixty-month sentence

on   the     firearms       conviction,        for     a    total     of        230   months’

imprisonment.        By published opinion, this court affirmed Perry’s

convictions but vacated Perry’s sentence in light of Kimbrough

v.   United      States,    552     U.S.     85,   101-07    (2007),       in     which      the

Supreme Court held that the 100:1 crack-to-powder cocaine ratio

could be a basis for variance.                 United States v. Perry, 560 F.3d

246 (4th Cir. 2009).               This court added, “[a]s a result, it is

premature for us to consider Perry’s remaining challenge to the

district      court’s       denial    of     his      additional      requests         for    a

variance     below    the    suggested        guideline      range.”        Id.       at   259.

Perry      now    appeals     the     170-month        sentence       he        received     at

resentencing. 1



      1
       Prior to resentencing, the district court granted Perry’s
18 U.S.C. § 3582(c)(2) (2006) motion for a reduction of sentence
(Continued)
                                              2
            On appeal, Perry argues the district court: (1) failed

to   exercise      its    discretion     under     Kimbrough     and    reduce     his

sentence based on the 100:1 crack-to-powder ratio; (2) erred in

not granting a downward variance based on the use of acquitted

conduct at sentencing to increase his sentence and the various

arguments     he    proffered      in    consideration      of    the    18   U.S.C.

§ 3553(a) (2006) factors; (3) erred in not recalculating a lower

criminal history category based on Amendment 709 of the U.S.

Sentencing Guidelines (U.S.S.G.), which became effective after

his original sentence; and (4) erred in imposing a consecutive

five-year sentence despite the “exception clause” of 18 U.S.C.

§ 924(c)(1)(a).          The Government responds that the district court

did not abuse its discretion in denying Perry’s motion for a

downward variance and in sentencing him within the Sentencing

Guidelines range.           It further contends that Perry’s arguments

with respect to the consecutive § 924(c) sentence and Amendment

709 were barred from consideration under the mandate rule.

            This        court     reviews       Perry’s     sentence      under     a

deferential        abuse-of-discretion          standard.        Gall    v.   United

States, 552 U.S. 38, 51 (2007).                 “The first step in this review

requires    us     to    ensure   that   the     district   court      committed   no



based on the amendment to the Guidelines for crack                            cocaine
offenses and sentenced him to 197 months’ imprisonment.



                                            3
significant procedural error, such as improperly calculating the

Guidelines range.”            United States v. Osborne, 514 F.3d 377, 387

(4th     Cir.     2008)      (internal         quotation         marks,     citations       and

alterations       omitted).              We     then       consider       the     substantive

reasonableness         of    the     sentence,         “tak[ing]      into       account    the

totality of the circumstances.”                      Gall, 552 U.S. at 51.              If the

sentence is within the Guidelines range, this court presumes on

appeal that the sentence is reasonable.                            United States v. Go,

517 F.3d 216, 218 (4th Cir. 2008); see Rita v. United States,

551     U.S.     338,       346-56       (2007)        (permitting         presumption        of

reasonableness for within-Guidelines sentence).

               Perry        first        maintains         that     his         sentence      is

substantively unreasonable because the district court refused to

grant    a     variance      on    the    basis       of   the    100:1    crack-to-powder

ratio.        In Kimbrough, the Supreme Court held that a district

court was entitled to disagree with and to decline to follow the

crack-to-powder ratio expressed in the Guidelines.                                 The Court

has     since    reinforced         the       point    that       “district       courts    are

entitled to reject and vary categorically from the crack-cocaine

Guidelines        based       on     a        policy       disagreement          with      those

Guidelines.”        Spears v. United States, 129 S. Ct. 840, 843-44

(2009).        Perry received the benefit of the 2007 amendments to

the    Sentencing       Guidelines         designed        to    address     the    crack-to-

powder       cocaine    disparity.             The    record      further       reflects    the

                                                4
district court amply understood its discretion in this case,

stating that it recognized its discretion “to vary further to

consider     the     defendant’s        motion        for    a    downward     departure.”

Ultimately,        the     district       court        determined         there      was    no

appropriate basis to further amend the judgment to reflect the

disparity.     See United States v. Caldwell, 585 F.3d 1347, 1355

(10th Cir. 2009) (upholding district court’s decision not to

vary from crack-to-powder ratio because “[n]othing in Kimbrough

mandates that a district court reduce a defendant’s sentence in

order   to   eliminate          the   crack/powder          sentencing     disparities”),

cert. denied, 131 S. Ct. 209 (2010).                       Because the district court

was not obligated to vary from the Guidelines range under these

circumstances, we conclude that the district court’s decision

not to grant a downward variance did not render Perry’s sentence

substantively unreasonable.

             Perry       also    contends       the    district        court   should      have

granted a downward variance based on his argument regarding the

role acquitted conduct played in determining the drug quantity

for which he was held responsible.                         To the extent Perry argues

the impropriety of attributing acquitted conduct to him, his

claim was expressly rejected by this court in his first appeal.

See   United   States v.          Bell,     5       F.3d    64,   66    (4th   Cir.     1993)

(explaining        mandate       rule   forecloses           relitigation       of    issues

expressly or impliedly decided by the appellate court).                               To the

                                                5
extent Perry requested that the district court consider as a

mitigating factor that ninety-three percent of the crack cocaine

attributed   to    him     was   based     on    acquitted      conduct,    the     court

specifically heard argument from both parties and determined a

variance on that basis was not appropriate.                        We conclude the

district court did not abuse its discretion in this regard.

           Next,        Perry    argues    the       district    court     abused    its

discretion in denying his motion for a downward variance based

on its arguments concerning the § 3553(a) factors; namely, his

rehabilitation in prison, his efforts to be a good father, and

his medical problems.             In his allocution, Perry informed the

court of the classes he had taken in prison, his clean prison

record,   and     his    acceptance       of    responsibility.          Importantly,

Perry did not argue in his opening brief that the district court

failed to consider his arguments or failed to give an adequate

explanation of its sentence. 2             Rather, he simply asserts that a

downward variance was well supported.

           The     record       reflects       the    district    court     heard    the

parties’ arguments regarding all of the factors Perry contended


     2
       Perry argues in his reply brief that the district court
did not adequately articulate its reasons for denying his
variance motion, in violation of United States v. Carter, 564
F.3d 325 (4th Cir. 2009). However, this court will not consider
issues raised for the first time in a reply brief.        United
States v. Brooks, 524 F.3d 549, 556 n.11 (4th Cir. 2008).



                                           6
supported a downward variance.               In fact, the district court, in

fashioning     Perry’s         sentence,    emphasized         the      nature   of   the

offense, noted Perry’s four-year track record, and ordered that

the judgment direct a medical assessment in light of Perry’s

medical problems.           However, the district court clearly found a

sentence     within      the      Guidelines     range    was     appropriate.         We

conclude the       district        court   did   not     abuse    its    discretion    in

denying the variance on this basis.

            Perry also argues that the district court erred in

denying his objection to the consecutive sentence under § 924(c)

and to the recalculation of his criminal history under Amendment

709. Perry did not raise either of these arguments at his first

sentencing    or    in      his    first   direct       appeal.         The   Government

therefore     argues      that     consideration        of   these       arguments    was

precluded by the mandate rule, which “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.

            We review de novo whether a post-mandate judgment of

the district court “contravenes the mandate rule, or whether the

mandate rule has been scrupulously and fully carried out.”                            Doe

v. Chao, 511 F.3d 461, 464 (2007) (internal quotation marks and

citation omitted).          The mandate rule prohibits lower courts with

limited exceptions from considering questions that the mandate

                                            7
of a higher court has laid to rest.                      Id. at 465.            The rule

likewise restricts the district court’s authority on remand from

the court of appeals.             “[A]ny issue conclusively decided by this

[C]ourt on the first appeal is not remanded, and second, any

issue that could have been but was not raised on appeal is

waived and thus not remanded.”             Id. (citation omitted).

                   At resentencing, Perry argued that the district court

should       not    impose    a   consecutive,     statutorily-mandated           sixty-

month prison term on count six, relying on the interpretation of

the “except clause” given in United States v. Whitley, 529 F.3d

150 (2d Cir. 2008), and United States v. Williams, 558 F.3d 166

(2d Cir. 2009), abrogated by Abbott v. United States, 131 S. Ct.

18 (2010). 3         Perry argued that he was already subject to a ten-

year       mandatory    minimum    sentence      due    to   his   drug   conviction.

Perry conceded below, however, that this claim was foreclosed by

United States v. Studifin, 240 F.3d 415 (4th Cir. 2001), in

which      this     court    determined   that    the    “except    to    the    extent”

language in § 924(c)(1) merely serves to connect the prefatory


       3
        Section 924(c)(1)(A) of Title 18 begins by stating
“[e]xcept to the extent that a greater minimum sentence is
otherwise provided by this subsection or by any other provision
of law,” and then provides a mandatory minimum sentencing
schedule depending upon certain conditions precedent. 18 U.S.C.
§ 924(c)(1)(A).




                                           8
language    of       the    subsection        with       other     subdivisions         of   the

chapter.    Id. at 423.               Perry nonetheless sought to preserve the

issue given the Circuit split at the time.                           The district court

denied the motion.

            We       conclude         this    argument       was    foreclosed          by   the

mandate rule as Perry could have, but did not, raise it in his

first appeal.          This argument was plainly available to Perry at

that time, and he did not at resentencing rely on a change in

the law or newly discovered evidence, or purport to correct a

blatant error to prevent a serious injustice.                          See Doe, 511 F.3d

at 467.    Because Perry could have raised this issue in his first

appeal but did not, the district court did not have authority to

consider this argument.                Even if the court could have considered

this argument, it is foreclosed by the Supreme Court’s decision

in   Abbott,     131       S.   Ct.    at    23       (holding   “that   a     defendant      is

subject    to    a   mandatory,         consecutive         sentence     for    a   §    924(c)

conviction, and is not spared from that sentence by virtue of

receiving a higher mandatory minimum on a different count of

conviction.”).

            We also conclude that the district court was precluded

from considering Amendment 709 to the U.S.S.G., which altered

how the probation officer counts misdemeanor and petty offenses

in   determining       the      criminal      history       category.          Although      the

district court heard Perry’s arguments as to the Amendment and

                                                  9
its     applicability,         and    ultimately     denied     the     motion,      the

calculation of Perry’s criminal history category was implicitly

foreclosed by this court’s mandate.                  Furthermore, the district

court was required to apply the Guidelines “that were in effect

on the date of the previous sentencing of the defendant prior to

the appeal,” which did not include Amendment 709.                             18 U.S.C.

§ 3742(g)(1) (2006).

               With respect to the establishment of the Guidelines

range, we note that on remand the district removed the two-level

enhancement          for   reckless    endangerment         initially    applied      to

Perry’s sentence.            Perry did not challenge the enhancement in

his   first     appeal.        Although    the    district    court     exceeded     the

scope of the mandate in removing the two-point enhancement, the

error inures to Perry’s benefit.                 See Greenlaw v. United States,

554 U.S. 237, __, 128 S. Ct. 2559, 2564-67 (2008) (holding that,

in the absence of a Government cross-appeal, an appellate court

may   not      sua    sponte     correct   a     district    court    error     if   the

correction would be to the defendant’s detriment).

               For the reasons stated, 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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