     Case: 07-60830     Document: 00511109761          Page: 1    Date Filed: 05/13/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            May 13, 2010
                                     No. 07-60830
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MICHAEL STARNES, also known as Little Mike,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:02-CR-95-1


Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
        In 2003, through a jury trial, Michael Starnes was convicted of various
weapons and drug-related offenses; he successfully appealed his sentence in the
light of United States v. Booker, 543 U.S. 220 (2005) (Sentencing Guidelines held
to be only advisory). See United States v. Starnes, 157 F. App’x 687 (5th Cir.
2005). He now challenges the 50-year total term of imprisonment imposed on
remand (30-year term for possessing firearms (including a machinegun) in



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 07-60830   Document: 00511109761 Page: 2        Date Filed: 05/13/2010
                                No. 07-60830

furtherance of a drug-trafficking crime (count five), to be served consecutively
to concurrent 20-year terms for each of the remaining offenses).
       Starnes contends the district court erred in declining to reconsider the
drug-quantity calculation used in determining his sentences. Because Starnes
did not challenge the district court’s drug-quantity calculation in his initial
appeal, he waived this issue. United States v. Griffith, 522 F.3d 607, 609-10 (5th
Cir.), cert. denied, Martin v. United States, 129 S. Ct. 211 (2008). Recalculation
of the drug quantity, therefore, would have been beyond the scope of our court’s
mandate. See United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004); see also
United States v. Pineiro, 470 F.3d 200, 206-07 (5th Cir. 2006) (holding district
court exceeds scope of mandate if it recalculates guidelines range on remand for
post-Booker resentencing under an advisory guidelines regime). Starnes has not
shown his request for drug-quantity recalculation falls within any exception to
the mandate rule. Pineiro, 470 F.3d at 205-06. The district court did not err in
declining to reconsider the issue.
      On the other hand, we hold sua sponte, see Federal Rule of Criminal
Procedure 52(b); see also United States v. McWaine, 290 F.3d 269, 277 n.8 (5th
Cir. 2002), that the district court erred in imposing sentences for counts two,
four, and eight that exceeded the statutory maximum. In counts two and eight,
Starnes was charged with conspiring to possess with intent to distribute and
possessing with intent to distribute marijuana; the statutory maximum for each
of those offenses is five years’ imprisonment. See 21 U.S.C. § 841(a), (b)(1)(D).
In count four, Starnes was charged with possessing an unregistered firearm; the
statutory maximum for that offense is ten years’ imprisonment. See 26 U.S.C.
§§ 5845(b), 5861(d), & 5871. Starnes was sentenced, however, to 20-year terms
of imprisonment for each of these counts.
      Those three sentences constitute plain error that affects not only Starnes’
substantial rights, but also the fairness, integrity, and public reputation of the
judicial proceedings. See Puckett v. United States, 129 S. Ct. 1423, 1428 (2009);

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                                No. 07-60830

United States v. Coil, 442 F.3d 912, 914 (5th Cir. 2006). Accordingly, Starnes’
sentences are MODIFIED for counts two, four, and eight, so that, for those
counts, Starnes must serve five-, ten-, and five-year terms of imprisonment,
respectively. See United States v. De Jesus-Batres, 410 F.3d 154, 164 (5th Cir.
2005). This modification does not affect Starnes’ total term of imprisonment,
however, because his concurrent sentences for his remaining charges exceed the
three modified sentences. See id.
            AFFIRMED AS MODIFIED. This matter is remanded to district
court for entry of judgment consistent with this opinion.




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