                                            Filed:   February 23, 2006

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                            No. 03-4422
                            (CR-98-144)


UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus



LLOYD ANTHONIE WILLIAMS,

                                               Defendant - Appellant.



                             O R D E R


     The court grants appellant’s motion to correct the opinion and

amends its opinion filed January 20, 2006, as follows:

     On page 4, lines 9 and 11 -- the word “crack” is deleted.



                                         For the Court - By Direction



                                            /s/ Patricia S. Connor
                                                    Clerk
                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 03-4422



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

           versus


LLOYD ANTHONIE WILLIAMS,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Shelby. Lacy H. Thornburg, District
Judge. (CR-98-144)


Argued:   October 28, 2005                 Decided:   January 20, 2006


Before WILKINS, Chief Judge, and MICHAEL and TRAXLER, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Aaron Edmund Michel, Charlotte, North Carolina, for
Appellant. Thomas Richard Ascik, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.   ON BRIEF: Robert J. Conrad, Jr., United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     This is Lloyd Anthonie Williams’ third appeal after his

conviction for unlawful possession of a firearm.   See 18 U.S.C.A.

§ 922(g)(1).   Williams contends that the district court erred by

sentencing him in strict accordance with the instructions we set

forth in the second appeal.    Williams argues that the district

court should have considered new evidence involving his prior state

convictions, evidence that could have resulted in a substantially

lower sentence if considered by the district court.        For the

reasons set forth below, we affirm.



                                I.

     A law enforcement officer discovered a gun during a routine

traffic stop of a car driven by Williams.     Because Williams had

prior North Carolina state court felony convictions (one assault

conviction and two drug-related convictions), he was charged with

unlawful possession of a firearm.    Prior to trial, the government

filed an information stating that because Williams had three prior

convictions for violent felonies or serious drug offenses, it would

seek an enhanced sentence under the Armed Career Criminals Act.

See 18 U.S.C.A. § 924(e) (the “ACCA”).      Williams was convicted

after a jury trial. Applying the Career Offender provisions of the

Sentencing Guidelines, the district court sentenced Williams to

life imprisonment.


                                2
       Williams appealed.      Although we affirmed his conviction, we

vacated his sentence, concluding that the § 922(g) charge of which

Williams had been convicted did not trigger the application of the

Career Offender guidelines. We remanded for re-sentencing, leaving

for the district court the question of whether Williams could be

sentenced under the ACCA.       See United States v. Williams, No. 99-

4583, 16 Fed. Appx. 90 (4th Cir. June 14, 2001) (unpublished).

       The ACCA provides for a mandatory minimum sentence of fifteen

years for a defendant who violates § 922(g) if the defendant has

three previous convictions “for a violent felony or a serious drug

offense.”      18 U.S.C.A. § 924(e)(1).      On remand, the district court

concluded that Williams’ prior North Carolina convictions satisfied

the requirements of the ACCA, and the court imposed a sentence of

300 months.     Williams appealed again, and we affirmed the district

court’s conclusion that Williams’ state court convictions subjected

him to sentencing under the ACCA.          We concluded, however, that the

district court erred when determining Williams’ base offense level.

We vacated Williams’ sentence and remanded for re-sentencing,

giving the district court explicit instructions on how to handle

the re-sentencing.      See United States v. Williams, No. 01-4869, 57

Fed.   Appx.    553,   558   (4th   Cir.   Jan.   29,   2003)   (unpublished)

(“Williams’ offense level should be 33, which, with his category VI

criminal history, yields a sentencing range of 235-293 months.             On




                                       3
remand, the district court shall impose a sentence within this

range.” (citation and footnote omitted)).

      Less than two weeks before Williams was to be re-sentenced,

counsel for Williams filed a motion for appropriate relief in North

Carolina state court seeking a modification of his prior drug

convictions.    The state did not object to the motion, and an order

was   entered   the   same   day   the   motion   was   filed.   The   order

retroactively modified the prior drug convictions, converting what

had been convictions for the sale of cocaine that carried a maximum

sentence of ten years to convictions for possession of cocaine that

carried a maximum sentence of five years.         As modified, Williams’

drug convictions no longer qualified as predicate convictions under

the ACCA, see 18 U.S.C.A. § 924(e)(2)(A)(ii), leaving Williams with

only one conviction (the assault conviction) that could be counted

under the ACCA.       Thus, at the re-sentencing hearing, Williams

argued that he should not be sentenced as an armed career criminal

and that he was instead subject to the ten-year maximum sentence

set forth in 18 U.S.C.A. § 924(a)(2).1

      The district court rejected Williams’ argument.        The district

court concluded that under the mandate rule, it was obligated by

our prior opinion to impose a sentence of between 235-293 months



      1
      Absent the designation of Williams as an armed career
criminal, the relevant Guidelines sentencing range would be either
70-87 months or 84-105 months, depending upon the application of a
particular offense level enhancement.

                                     4
and that it was not free to consider Williams’ argument with regard

to the newly modified state-court convictions.         The district court

sentenced Williams to 293 months imprisonment, and this appeal

followed.



                                     II.

     “Few legal precepts are as firmly established as the doctrine

that the mandate of a higher court is controlling as to matters

within its compass.”        United States v. Bell, 5 F.3d 64, 66 (4th

Cir. 1993) (internal quotation marks omitted).

     Because this mandate rule is . . . a specific application
     of the law of the case doctrine, in the absence of
     exceptional circumstances, it compels compliance on
     remand with the dictates of a superior court and
     forecloses relitigation of issues expressly or impliedly
     decided by the appellate court.

Id. (internal quotation marks omitted).

     In our opinion in Williams’ second appeal, we concluded that

Williams’ state drug convictions qualified as predicate convictions

under the ACCA and we affirmed the district court’s decision to

sentence    Williams   as    an   armed    career   criminal.   We   also

specifically instructed the district court to impose a sentence

between 235 and 293 months.       Given the issues that were resolved in

the second appeal and the specificity of our instructions to the

district court, Williams’ claim that he should not be sentenced as

an armed career criminal was inconsistent with our mandate.



                                      5
       The mandate rule, however, is not without exceptions.                          Under

certain extraordinary circumstances, a trial court has discretion

to reopen matters otherwise laid to rest.                       See id. (“[W]hen this

court remands for further proceedings, a district court must,

except in rare circumstances, implement both the letter and spirit

of     the    mandate,     taking       into       account    our   opinion     and     the

circumstances         it   embraces.”)         (internal        quotation     marks     and

alteration omitted); United States v. Bell, 988 F.2d 247, 251 (1st

Cir. 1993) (noting that the mandate rule is not a jurisdictional

rule    and    “may   tolerate      a   modicum       of     residual   flexibility      in

exceptional circumstances” (internal quotation marks omitted)).

Our cases have spelled out the narrow circumstances under which an

exception to the mandate rule may be warranted: (1) if “controlling

legal authority has changed dramatically”; (2) if “significant new

evidence, not earlier obtainable in the exercise of due diligence,

has come to light”; or (3) if “a blatant error in the prior

decision will, if uncorrected, result in a serious injustice.”

Bell, 5 F.3d at 67 (internal quotation marks and alterations

omitted); see also United States v. Aramony, 166 F.3d 655, 662 (4th

Cir. 1999).

       Williams contends that the modification of his state drug

convictions qualifies as newly discovered evidence that should have

been considered by the district court.                       Preliminarily, we agree

with Williams that the retroactive modification of his state


                                               6
convictions   must   be   considered   new   “evidence.”     While   this

defendant-initiated and defendant-obtained modification is far from

the usual kind of “evidence” presented in these situations, it is

a fact that has newly come into existence, which is sufficient to

make it new “evidence” for purposes of our inquiry.        Cf. Johnson v.

United States, 125 S. Ct. 1571, 1577 (2005) (concluding that the

vacatur of prior state convictions obtained by the defendant was a

new “fact” for purposes of determining whether the defendant’s §

2255 petition was timely filed); United States v. Gadsen, 332 F.3d

224, 227 (4th Cir. 2003) (“[T]he relevant ‘fact’ with respect to

the operation of Gadsen’s § 2255 claim today is the fact that

Gadsen’s   prior     state    conviction     has   been     conclusively

invalidated.”).

     In addition to requiring new evidence, however, the exception

to the mandate rule requires that the defendant exercise due

diligence in obtaining that new evidence.       See Bell, 5 F.3d at 67.

To determine whether Williams exercised due diligence in obtaining

the modification of his state court sentences, we must first

determine the relevant time frame--that is, we must determine when

the due diligence clock begins ticking.         We have found no case

discussing when the due diligence period should begin in the




                                   7
context of the mandate rule. We believe, however, that the Supreme

Court’s decision in Johnson provides guidance on this question.2

      In Johnson, the defendant was convicted in federal court of

various drug charges.         Because of his prior state convictions, the

defendant received an enhanced sentence under the career offender

provisions of the Sentencing Guidelines.                   His conviction and

sentence as a career offender were affirmed on appeal.                        More than

three years after his federal conviction, the defendant filed a

petition in state court challenging various convictions, including

one   upon   which    his     federal   designation   as       a   career      offender

depended.     The state court concluded that the defendant had not

validly waived his right to counsel and vacated the convictions.

A   few   months     later,    the   defendant   filed     a       §   2255    petition

challenging his career offender designation.               He alleged that the

vacatur of his state convictions was a new “fact” and that his §

2255 petition was timely because it was filed within one year of

his “discovery” of this new “fact.”3             The district court and the

court of appeals rejected the § 2255 petition as untimely.




      2
      We held this case in abeyance pending the Supreme Court’s
decision in Johnson.
      3
      The Antiterrorism and Effective Death Penalty Act (“AEDPA”)
establishes a one-year limitations period for the filing of a §
2255 petition, a period that runs from, inter alia, “the date on
which the facts supporting the claim . . . could have been
discovered through the exercise of due diligence.” 28 U.S.C.A. §
2255, ¶ 6(4) (West 2005).

                                         8
     The Supreme Court held that the vacatur of the defendant’s

state convictions was a new fact within the meaning of § 2255.                 See

Johnson, 125 S. Ct. at 1577; see also Custis v. United States, 511

U.S. 485, 497 (1994) (explaining that a federal defendant who

successfully challenges a state conviction may “apply for reopening

of any federal sentence enhanced by the state sentence[]”).                    The

Court also held that the defendant’s receipt of the order vacating

the state convictions was the event that triggered the running of

AEDPA’s one-year statute of limitations.              See Johnson, 125 S. Ct.

at 1580.    Nonetheless, the Court concluded that the defendant had

not acted with due diligence in seeking the order, as required by

§ 2255.    See id. at 1582.

     The   Court   determined   that       it   was   the   possibility   of    an

enhanced federal sentence that would cause a defendant to recognize

the need to challenge the validity of his prior state convictions.

As to which point in the federal proceedings would trigger the due

diligence period, the Court identified three possible dates-–the

date the federal indictment was disclosed, the date of judgment, or

the date of finality after direct appeal.             See id. at 1581.    Using

the date of the federal indictment as the due diligence trigger

“would require the quickest response and serve finality best, but

it would produce some collateral litigation that federal acquittals

would prove to be needless.”       Id.          Using the “date of finality

after direct appeal” would minimize collateral litigation, but at


                                       9
the expense of “finality    . . . com[ing] late.”    Id.   The Court

thus settled on the date that the federal judgment was entered

against the defendant:

      This shapes up as a case for choosing the bowl of
      porridge between the one too hot and the one too cold,
      and settling on the date of judgment as the moment to
      activate due diligence seems best to reflect the
      statutory text and its underlying concerns. After the
      entry of judgment, the subject of the § 2255 claim has
      come into being, the significance of inaction is clear,
      and very little litigation would be wasted, since most
      challenged federal convictions are in fact sustained.

Id.   Because the defendant waited more than three years after the

federal judgment was entered to challenge his state convictions,

the Court held that the defendant had not acted with due diligence.

The Court thus affirmed the dismissal of the defendant’s § 2255

petition as untimely.    See id. at 1582.

      The factual contexts of Johnson and this case are identical in

the most important respects. In both cases, the defendants managed

to alter their predicate state convictions in a way that brought

into question the propriety of their sentencing under the ACCA, and

Williams, like the defendant in Johnson, seeks to overturn his ACCA

designation because of this “new evidence.”    There is, of course,

an important difference between Johnson and the case at bar.

Johnson arose in the habeas context; the federal conviction in

Johnson had become final before the defendant began the process of

setting aside his state convictions.    In this case, by contrast,

final judgment has yet to be entered.   We do not believe, however,


                                 10
that this difference in the procedural posture of the cases makes

Johnson inapplicable.

     The     interest    of    preserving     the   finality   of    criminal

convictions is of paramount importance in the habeas context. See,

e.g., Woodford v. Garceau, 538 U.S. 202, 206 (2003) (“Congress

enacted AEDPA to reduce delays in the execution of state and

federal criminal sentences . . . and to further the principles of

comity, finality, and federalism.”             (internal quotation marks

omitted)).      A similar interest drives the law-of-the-case and the

mandate rules–-the need for litigation to finally come to an end.

See Klay v. All Defendants, 389 F.3d 1191, 1199 (11th Cir. 2004)

(“While not an inexorable command, the law of the case doctrine

provides stability and finality in litigation, which are crucial

cornerstone values for developing a just and efficient judicial

process.”); United States v. O’Dell, 320 F.3d 674, 679 (6th Cir.

2003)   (“The    mandate      rule   serves   the   interest   in   finality.

Repetitive hearings, followed by additional appeals, waste judicial

resources and place additional burdens on parole officers and

personnel and on hardworking district and appellate judges.”)

(internal quotation marks omitted); Bell, 988 F.2d at 252 (“The law

of the case doctrine dictates that all litigation must sometime

come to an end.”).      In our view, the need to bring litigation to an

end is of similar importance to the interest in preserving the

finality of judgments that guided the Supreme Court’s decision in


                                       11
Johnson.      Cf. Calderon v. Thompson, 523 U.S. 538, 555 (1998)

(“Finality is essential to both the retributive and the deterrent

functions of criminal law.          Neither innocence nor just punishment

can be vindicated until the final judgment is known.                       Without

finality, the criminal law is deprived of much of its deterrent

effect.” (citation and internal quotation marks omitted)).                      Given

these similar interests and the factual similarities between this

case and Johnson, we believe that the Johnson Court’s analysis of

when the due diligence clock should begin to run under § 2255

should apply to the question of when the due diligence clock should

begin    to   run    for   purposes     of    determining   whether      this   case

justifies making an exception to the mandate rule.

       As in Johnson, using the date of indictment as the trigger for

the due diligence requirement would encourage collateral litigation

that would prove unnecessary in cases where the defendant was

acquitted of the federal charges. Using the date of final judgment

as the trigger for the due diligence requirement would present the

same    problem     that   gave   the   Supreme    Court    pause   in   Johnson--

litigation in which finality comes much too late.                   Williams was

convicted in December 1998 and sentenced in August 1999. We issued

our opinion in his first appeal in June 2001 and our opinion in his

second appeal in January 2003.               If the due diligence period does

not beginning running until final judgment, then the period would

not have begun to run even now, seven years after Williams was


                                         12
convicted.      Moreover, using the date of final judgment as the

beginning of the due diligence period would subject criminal

defendants to wildly varying time periods in which to challenge

their state convictions.            In cases like this one, where there has

been appeal after appeal, the defendant would have many years

before the due diligence clock would begin ticking.                    In the more

typical case, however, where there is only one appeal, the due

diligence period would begin much sooner.

     After considering the interest in ensuring that all litigation

finally comes to an end and balancing that interest against a

defendant’s right to challenge his predicate convictions in state

court,   we    see   no    reason    to   depart      from   the   Supreme    Court’s

resolution of the due diligence issue in Johnson.                  Accordingly, we

conclude      that   for   purposes       of    the   newly-discovered       evidence

exception to the mandate rule, the due diligence period begins to

run when the judgment of conviction is entered by the district

court, not when that judgment becomes final at the conclusion of

appellate review.4         Cf. Fed. R. Crim. P. 33(b)(1) (stating that

“[a]ny motion for a new trial grounded on newly discovered evidence




     4
      Our determination of when the due diligence clock begins to
run is limited to the circumstances of this case, where a federal
defendant seeks to overturn an enhanced sentence after challenging
the predicate state convictions upon which the enhanced sentence
was based. When the due diligence period begins in other cases
involving the new-evidence exception to the mandate rule is a
question to be answered when presented.

                                           13
must be filed within 3 years after the verdict or finding of

guilty”).5

     Now that we have determined that the time for exercising due

diligence began when Williams was sentenced on the federal charge,

the question is whether Williams in fact exercised due diligence.

We are constrained to answer that question in the negative.

     Williams was sentenced in August 1999, but it was not until

April    2003   that      he    filed    his   state-court       motion   seeking

modification of his prior convictions. Williams has known since he

was indicted that the government would seek to rely on his state

drug convictions to enhance his sentence, and Williams clearly

understood the significance of the enhancement, given that he

raised various challenges to the use of the convictions in his

prior    appeals     to   this    court.       Notwithstanding      the   obvious

significance    of     the     prior    convictions   to   his    federal   court

sentence, Williams waited more than three-and-a-half years before

challenging the convictions in state court.

     It is worth remembering that the “new evidence” at issue here

is a retroactive modification of the convictions that was obtained

by Williams and solely at his behest.           No new information about the

state convictions came to Williams after his federal conviction;



     5
      Prior to 1998, the time for filing a new-trial motion based
on newly discovered evidence ran from the time of “final judgment,”
which was interpreted to refer to action at the appellate level.
See Fed. R. Crim. P. 33, Adv. Comm. Notes to 1998 amendments.

                                          14
the   modification         of   the     convictions      was   based   on    facts    that

Williams knew at least by the time of the federal sentencing, if

not years earlier when he pleaded guilty to the state drug charges.

Given the ease with which the modification was obtained (it was

granted the same day the motion was filed), we can only assume that

Williams could have obtained modification at any earlier point in

the federal proceeding, if he had only bothered to ask.

       To be sure, there is evidence in the record showing that

Williams took some limited action within a few months after he was

sentenced on the federal charge.                   In January 2000, Williams filed

a    motion   in    state       court    seeking     a   transcript     of    the    state

proceedings.        That request was denied in February 2000 because

Williams      had    not    sufficiently           explained    why    he    needed   the

transcript.         In March 2000, Williams sought reconsideration of

denial, explaining that he needed the transcripts because he was

“in the process of drafting a petition to attack his prior [state]

convictions.”        The North Carolina court denied the request for

reconsideration.        As far as the record reveals, Williams’ efforts

then came to a halt, to finally be revived in April 2003.                               We

simply cannot conclude that requesting a transcript (which, so far

as    the   record    reveals,          was   not    necessary    to    obtaining      the

modification of the state convictions)6 and then abandoning the


       6
      In his motion seeking modification of the state convictions,
Williams alleged that his attorney informed him that the offenses
“would thereafter be considered as a single offense for future

                                              15
effort for three years amounts to the exercise of due diligence in

seeking a modification of his state convictions.

     Because Williams waited more than three years after he was

sentenced to seek a modification of his state drug convictions, we

conclude that he failed to exercise due diligence as required by

the newly-discovered evidence exception to the mandate rule.    See

Johnson, 125 S. Ct. at 1582 (concluding that defendant who waited

more than three years after federal sentencing to seek the vacatur

of state convictions did not exercise due diligence).7   And because

Williams cannot satisfy the requirement for the newly-discovered

evidence exception, the district court properly adhered to our

mandate and properly refused to consider the evidence of Williams’

modified state convictions.




sentencing purposes.” J.A. 44. The motion included no reference
to any part of the transcript of the prior proceedings. Moreover,
we note that Williams does not argue on appeal that the transcript
was necessary for the modification request or that his delay in
seeking the modification was caused by a delay in obtaining the
transcript.
     7
      The government contends that the modification obtained by
Williams, which reduced the drug-sales charges to drug-possession
charges, is nothing more than a “twelve-year-delayed plea bargain.”
Appellee’s Supplemental Brief at 5.       The government seems to
suggest that this kind of retroactive plea-bargaining should not
affect Williams’ designation as an armed career criminal as would
an order vacating a predicate state conviction.          Given our
conclusion that Williams does not meet the requirements of the
newly-discovered evidence exception to the mandate rule, we need
not consider this argument.

                                16
                                   III.

     In a supplemental filing, Williams contends that his sentence

was imposed in violation of his Sixth Amendment rights as set forth

in Blakely v. Washington, 542 U.S. 296 (2004) and United States v.

Booker, 125 S. Ct. 738 (2005).       Because Williams raises the issue

for the first time on appeal, we review for plain error only.             See

United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).

     In Booker, the Supreme Court held that the Sixth Amendment is

violated   when   a   district   court   imposes   a   sentence   under   the

Sentencing Guidelines that is greater than the maximum sentence

authorized by the facts found by the jury alone.           See Booker, 125

S. Ct. at 756.        Although Williams’ presentence report included

certain fact-based enhancements to his base offense level, those

enhancements were mooted by the designation of Williams as an armed

career criminal, a designation that carries with it a higher base

offense level under the Guidelines.           See U.S.S.G. § 4B1.4(b).

Because the fact-based enhancements were not applied, there is no

Sixth Amendment violation in that regard.              To the extent that

Williams contends his designation as an armed career criminal

violates the Sixth Amendment, the argument fails, because the facts

necessary to support the ACCA enhancement were inherent in the fact

of the predicate convictions.       See United States v. Thompson, 421

F.3d 278, 283 (4th Cir. 2005) (concluding that enhanced sentencing

under the ACCA does not amount to a Booker error if “the facts


                                    17
necessary   to    support   the   enhancement   inhere   in    the   fact   of

conviction”); United States v. Cheek, 415 F.3d 349, 354 (4th Cir.

2005) (concluding that a district court’s reliance on a defendant’s

prior convictions to support an enhanced sentence under the ACCA

does not violate the Sixth Amendment).          Williams’ Sixth Amendment

challenges to his sentence are therefore without merit.8



                                    IV.

     For    the   foregoing   reasons,    the    district     court’s   order

sentencing Williams to 293 months imprisonment is hereby affirmed.


                                                                     AFFIRMED




     8
      Williams does not object to his sentence on the grounds that
the district court erred by treating the Guidelines as mandatory.
See United States v. White, 405 F.3d 208, 216 (4th Cir. 2005).

                                     18
