                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-4900


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

CHARLETTE DUFRAY JOHNSON, a/k/a Charlotte Johnson,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington.    W. Earl Britt,
Senior District Judge. (7:10-cr-00093-BR-1)


Submitted:   August 30, 2013             Decided:   September 10, 2013


Before WILKINSON, GREGORY, and AGEE, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Charlette Dufray Johnson, Appellant Pro Se.         Jennifer P.
May-Parker, Assistant United States Attorney, Kristine L. Fritz,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Charlette Dufray Johnson pled guilty to two counts of

making    false,   fictitious,      or   fraudulent           claims   for    disaster

relief (“Counts One and Four”), in violation of 18 U.S.C. § 287

(2006); eight counts of wire fraud, in violation of 18 U.S.C.A.

§ 1343 (West Supp. 2012) (“Counts Seven through Fourteen”); and

two counts of aggravated identity theft (“Counts Fifteen and

Sixteen”),    in   violation    of    18     U.S.C.      § 1028A       (2006).     The

district court originally sentenced Johnson to sixty months of

imprisonment on Counts One and Four and ninety-seven months on

Counts    Seven    through     Fourteen,          to    run     concurrently,      and

twenty-four     months   on    Counts        Fifteen      and    Sixteen,     to   run

concurrently to each other and consecutively to the remaining

counts,    resulting     in    a     total        sentence       of     121   months’

imprisonment.      The court ordered Johnson to pay $107,593.30 in

restitution.

            Johnson    appealed,     and     we    affirmed      her    convictions.

United States v. Johnson, 480 F. App’x 186, 188 (4th Cir. 2012)

(No. 11-4725) (unpublished).             However, we found her sentence

procedurally unreasonable because the district court failed to

make factual findings adequate to support a vulnerable victim

Guidelines enhancement.        Id. at 189.             We further concluded that

the district court erred in calculating the appropriate amount

of   restitution.        Id.   at    189-90.            We    accordingly      vacated

                                         2
Johnson’s      sentence       and    restitution      order    and       remanded     for

“further proceedings.”          Id. at 190.

            On remand, the court effectively conducted a de novo

resentencing, hearing argument and ruling on all of Johnson’s

sentencing objections.              The court removed the vulnerable victim

enhancement,          but      reaffirmed       its     remaining           Guidelines

calculations.         The court imposed a sentence of sixty months on

Counts   One    and    Four    and    ninety-seven     months       on   Counts     Seven

through Fourteen, to run concurrently, and twenty-four months on

Counts Fifteen and Sixteen, to run consecutively to each other

and to the remaining counts, resulting in a total sentence of

145 months.      The court also ordered Johnson to pay $53,666.30 in

restitution.

            Johnson appeals pro se, challenging her convictions,

sentence of imprisonment, and restitution order.                         We affirm her

convictions and restitution order, affirm her sentence in part,

vacate her sentence in part, and remand for further proceedings

consistent with this opinion.

            With      regard    to    her   convictions,      Johnson’s       informal

brief,   liberally      construed,       contends     that    the    district       court

abused its discretion by failing to provide her a full hearing

before revoking her pretrial release, as required by 18 U.S.C.

§ 3148 (2006), and in denying her motion to dismiss the charges

against her on this basis.              Because Johnson could have, but did

                                            3
not, challenge the absence of this revocation hearing during her

original appeal, this issue is waived and therefore barred by

the operation of the mandate rule.                         See United States v. Susi,

674 F.3d 278, 283 (4th Cir. 2012); cf. Doe v. Chao, 511 F.3d

461, 465 (4th Cir. 2007) (recognizing that issues not raised in

initial appeal are generally waived and “not remanded”); Volvo

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

481    (4th        Cir.     2007)      (“[U]nder      the    mandate    rule   a     remand

proceeding         is     not   the    occasion      for    raising   new   arguments     or

legal theories.”).                We find no exception to the mandate rule

applicable to this argument.                 See United States v. Pileggi, 703

F.3d       675,    682     (4th   Cir.    2013)      (describing      exceptions).        We

therefore affirm Johnson’s convictions.

                  Johnson       next    raises       multiple     challenges       to    her

sentence of imprisonment.                  We find two of these arguments to

warrant further consideration on remand. 1                      First, Johnson argues

that the district court violated Apprendi v. New Jersey, 530

U.S.       466     (2000),        by    imposing      an     enhancement     under      U.S.




       1
       We reject Johnson’s assertions that the district court
erred in failing to order the preparation of a revised
presentence report, incorrectly determined the amount of loss
for purposes of determining her Guidelines sentencing range, and
failed to credit her for time served as utterly without merit.



                                                 4
Sentencing Guidelines Manual (“USSG”) § 3C1.3 (2010). 2                         Because

Johnson raised this issue in the district court, we review her

challenge de novo. 3        United States v. Mackins, 315 F.3d 399, 405

(4th Cir. 2003).

            USSG    § 3C1.3     provides        for   a   three-level     enhancement

“[i]f a statutory sentencing enhancement under 18 U.S.C. § 3147

applies.”      Section      3147,     in    turn,     provides      for   “a   term   of

imprisonment of not more than ten years . . . consecutive to any

other    sentence      of   imprisonment”         for     any   defendant      who    is

convicted   of     a   felony    committed        while     released      on   pretrial

supervision.     18 U.S.C. § 3147(1) (2006).

            Apprendi requires that any fact increasing a criminal

penalty beyond the statutory maximum otherwise applicable must

be charged in the indictment and either submitted to a jury or

admitted by the defendant.                 530 U.S. at 490.          Johnson argued

that the USSG § 3C1.3 enhancement violated Apprendi because its

predicate    facts—that         she    committed          offense    conduct      while

     2
         While   Johnson  also   challenges  other   Guidelines
enhancements under Apprendi, we find these challenges lack
merit.   See United States v. Benkahla, 530 F.3d 300, 312 (4th
Cir. 2008).
     3
       Although Johnson did not raise this issue in her original
sentencing hearing or first appeal, we conclude that it is
appropriately considered in this appeal pursuant to one of the
recognized exceptions to the mandate rule.      See Pileggi, 703
F.3d at 682 (recognizing exception to mandate rule where
“controlling legal authority has changed dramatically”).



                                            5
released     on    pretrial    supervision—were               neither       charged        in    the

indictment nor found by a jury or admitted by Johnson.                                           The

district court overruled this objection after concluding that

the enhancement did not result in a sentence greater than the

statutory maximum applicable to her underlying offense.

             After       Johnson    was    resentenced,           however,        the     Supreme

Court held in Alleyne v. United States, 133 S. Ct. 2151 (2013),

that Apprendi applies equally to facts increasing a statutory

minimum sentence.          Id. at 2156.             Because the district court did

not   have    the    benefit       of     Alleyne        at     the   time      it    addressed

Johnson’s     objection,       we       vacate      the    portion         of   the       sentence

imposing this enhancement and remand to the district court to

consider     the    impact,        if   any,       of    Alleyne      on    Johnson’s           USSG

§ 3C1.3 enhancement.

             Johnson also asserts that the district court violated

the   Double      Jeopardy     and      Due    Process          Clauses      by      imposing      a

harsher sentence on remand. 4                 In North Carolina v. Pearce, 395

U.S. 711 (1969), the Supreme Court held that the Double Jeopardy

Clause    does     not    categorically            bar    the    imposition          of    a    more

severe punishment upon reconviction for an offense.                               Id. at 723.


      4
       We reject Johnson’s contention that the court’s sentence
violates double jeopardy.        See, e.g., United States v.
DiFrancesco, 449 U.S. 117, 134-37 (1980); United States v.
Silvers, 90 F.3d 95, 101 (4th Cir. 1996).



                                               6
However, due process prohibits a sentencing court from imposing

a   punishment     on    resentencing       to       penalize     the     defendant      for

successfully pursuing her appellate rights.                       Id. at 724.           Thus,

to protect against such vindictiveness by a resentencing court,

the Supreme Court held “that whenever a judge imposes a more

severe sentence upon a defendant after a new trial, the reasons

for his doing so must affirmatively appear.”                         Id. at 726.           If

this   requirement       is   not    met,       “a   presumption         arises     that   a

greater sentence has been imposed for a vindictive purpose—a

presumption       that   must   be    rebutted         by   objective          information

justifying the increased sentence.”                   Alabama v. Smith, 490 U.S.

794,     799    (1989)    (internal     quotation           marks        and     alteration

omitted).

               On remand, the district court ordered the sentences

applicable to Counts Fifteen and Sixteen to run consecutively to

each     other,    rather     than    concurrently          as      in     the     original

sentencing.        See 18 U.S.C. § 1028A(b)(2), (4).                       However, the

district court’s reasons for imposing a more severe sentence on

remand    are     not    expressly    clear          from   the     record,       and    the

Government concedes error on this basis.                        We therefore vacate

Johnson’s sentence as to Counts Fifteen and Sixteen and remand

to the district court for further clarification of whether, and

why, the court intended to impose the sentences applicable to



                                            7
Counts    Fifteen       and    Sixteen     consecutively        to    each   other     on

resentencing.

              Johnson     raises        several   other     challenges         to     her

sentence      of    imprisonment.         Assuming,      without      deciding,      that

these arguments are not barred by the operation of the mandate

rule, see Pepper v. United States, 131 S. Ct. 1229, 1250-51

(2011); United States v. Alston, __ F.3d __, 2013 WL 3722367, at

*2-3 (4th Cir. July 17, 2013), we conclude these arguments are

meritless.

              Turning to the restitution order, Johnson argues that

the district court failed to comply with this court’s mandate,

abused its sentencing discretion, and denied her right to due

process by re-imposing restitution in the amount of $107,593.30.

However,      the     resentencing        court    ordered       Johnson       to     pay

$53,666.30 in restitution—exactly the amount found appropriate

in this court’s prior opinion.                  See Johnson, 480 F. App’x at

190.     While Johnson also asserts that district court personnel

deliberately “falsified” her restitution order, we find no basis

in the record to support Johnson’s speculative assertion.

              Finally,        Johnson     challenges      the    district      court’s

denial   of    her    requests     for    grand   jury    transcripts        under   the

Freedom of Information Act, 5 U.S.C.A. § 552 (West Supp. 2012),

and Brady v. Maryland, 373 U.S. 83 (1963).                           Generally, grand

jury proceedings are secret, and matters occurring before the

                                            8
grand jury are subject to nondisclosure absent exceptions set

forth in Federal Rule of Criminal Procedure 6(e).                                See United

States v. Sells Eng’g, Inc., 463 U.S. 418, 424-25 (1983).                                     To

warrant disclosure, the petitioner must made “a strong showing

of particularized need.”                Id. at 434.          We conclude that Johnson

failed to make the requisite showing to warrant disclosure.                                 Nor

did    the    district      court      violate       FOIA   or     Brady   by    failing      to

disclose these materials.               See Vinson v. True, 436 F.3d 412, 420

(4th    Cir.       2006)    (required      elements         for    valid    Brady      claim);

United States v. Casas, 376 F.3d 20, 22 (1st Cir. 2004) (federal

courts       not    “agencies”      subject      to    FOIA);      McDonnell      v.     United

States,       4     F.3d   1227,       1246-47       (3d    Cir.    1993)       (grand      jury

disclosures exempt from FOIA); Fund for Constitutional Gov’t v.

Nat’l Archives & Records Serv., 656 F.2d 856, 869 (D.C. Cir.

1981) (same).

               Accordingly, we affirm Johnson’s convictions; vacate

her sentence of imprisonment in part to permit the court to

(1) reconsider its ruling on the USSG § 3C1.3 enhancement in

light of Alleyne, and (2) clarify its decision to impose the

sentences          for   Counts   Fifteen       and    Sixteen      consecutively.            We

affirm       Johnson’s      sentence      and       restitution       order      as    to   all

remaining issues; and remand for further proceedings consistent

with this opinion.           We deny Johnson’s motion for bail or release

pending       appeal,      and    we    deny    as    moot    Johnson’s         motions     for

                                                9
transcripts   and    other    documents      at   government     expense.      We

dispense   with     oral     argument    because       the    facts   and   legal

contentions   are   adequately     presented      in    the   materials     before

this court and argument would not aid the decisional process.



                                                              AFFIRMED IN PART,
                                                               VACATED IN PART,
                                                                   AND REMANDED




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