                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4470


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DEMETRIOUS ADONIS MOORE, a/k/a Meechie,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    Henry M. Herlong, Jr., Senior
District Judge. (6:08-cr-00124-HMH-1)


Submitted:   November 16, 2011            Decided:   December 12, 2011


Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Thomas   E.  Vanderbloemen,   GALLIVAN,  WHITE   &   BOYD,  P.A.,
Greenville, South Carolina, for Appellant.    William N. Nettles,
United States Attorney, E. Jean Howard, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Demetrious Adonis Moore was convicted by a jury of

carjacking (“Count I”), in violation of 18 U.S.C. § 2119 (2006);

extortion       (“Count      II”),       in     violation         of    18     U.S.C.    § 1951(a)

(2006);    and      bank     robbery          (“Count      III”),       in     violation      of    18

U.S.C. § 2113(a) (2006).                  The district court sentenced Moore to

480 months’ imprisonment.                     Moore appealed, and in an unpublished

opinion        following          oral        argument,          “we     affirm[ed]        Moore’s

carjacking       conviction         (Count       I)     and      sentencing       enhancements,

vacat[ed]       the       bank    robbery        conviction            (Count    III)    and       the

portion    of       his    sentence           related      to    it,     and    remand[ed]         for

resentencing.              Such    remand        is     for      the     limited    purpose         of

imposing Moore’s sentence in the absence of his bank robbery

conviction.”          United States v. Moore, 402 F. App’x 778, 784 (4th

Cir. 2010) (No. 09-4175) (unpublished).

               On     remand,      the        district          court    utilized       the    same

Guidelines       calculations         applied         at    Moore’s       initial       sentencing

with respect to Counts I and II to establish a new Guidelines

range     in    the       absence        of     Count      III.         The     district       court

established a total offense level of thirty-nine and a criminal

history category I, yielding a Guidelines range of 262 to 327

months, and sentenced Moore to 327 months’ imprisonment.                                      Moore

appeals,       challenging          the        application         of    various        sentencing



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enhancements and arguing that his new sentence is substantively

unreasonable.     Finding no error, we affirm.

           As an initial matter, we conclude that the mandate

rule precludes us from considering Moore’s argument that the

district      court   procedurally         erred    by        imposing   multiple

sentencing      enhancements      that        he      asserts          constituted

impermissible    double    counting.        The    mandate      rule   “forecloses

relitigation of issues expressly or impliedly decided by the

appellate court,” as well as “issues decided by the district

court but foregone on appeal or otherwise waived, for example

because they were not raised in the district court.”                        United

States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993).                      In our prior

opinion,   we    vacated   only   that      portion      of    Moore’s   sentence

related to his bank robbery conviction.                   Moore now seeks to

challenge sentencing enhancements that arose in the context of

his carjacking and extortion convictions.                Because he failed to

raise   his     double-counting        argument       during       his   original

sentencing hearing or in his first appeal and no exception to

the mandate rule applies, see United States v. Aramony, 166 F.3d

655, 661 (4th Cir. 1999) (discussing exceptions), the mandate

rule bars consideration of that argument in this appeal.                       See

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

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or    legal     theories.”);        Omni     Outdoor     Adver.,      Inc.   v.   Columbia

Outdoor Adver., Inc., 974 F.2d 502, 505 (4th Cir. 1992) (“It is

elementary that where an argument could have been raised on an

initial appeal, it is inappropriate to consider that argument on

a second appeal following remand.”).

              Turning        to    Moore’s      challenge        to    the   substantive

reasonableness of his sentence, we conclude that we may address

this claim because it could not have been considered previously

by this court.           Moore asserts that his sentence is unduly long

in comparison to similar defendants, and it does not account for

his     personal        history      and     characteristics.           Moore     properly

preserved this challenge “[b]y drawing arguments from [18 U.S.C.

§     3553(a)      (2006)]     for       a   sentence      different     than     the   one

ultimately imposed.”              United States v. Lynn, 592 F.3d 572, 578

(4th Cir. 2010).

              We    review     sentences       for     reasonableness,       applying    an

abuse-of-discretion standard.                  Gall v. United States, 552 U.S.

38, 51 (2007).           We first examine the sentence for “significant

procedural error.”            Id.        If we find the sentence procedurally

reasonable,        we    review      the     substantive     reasonableness        of   the

sentence,          “taking        into       account       the    totality        of    the

circumstances.”          United States v. Pauley, 511 F.3d 468, 473 (4th

Cir.    2007)      (internal       quotation       marks    omitted).        A    sentence

within a properly calculated Guidelines range will be presumed

                                               4
reasonable.     United States v. Mendoza-Mendoza, 597 F.3d 212, 216

(4th Cir. 2010).

           After a review of the record, we conclude that Moore

has   failed     to    overcome     the       presumption   of    reasonableness

accorded his within-Guidelines sentence.                 Moore’s argument that

his   sentence        is   unduly   disparate        when   compared     to     his

co-defendants’ sentences and to sentencing statistics is without

merit, as Moore cannot demonstrate that he is similarly situated

to these proposed comparators.                See United States v. Abu Ali,

528 F.3d 210, 264 (4th Cir. 2008).                Moore’s contention that his

sentence   is    greater     than   necessary       to   serve    the   goals    of

sentencing similarly lacks merit, as Moore has not demonstrated

that his mitigating characteristics require a lesser sentence

than the one imposed by the district court.                      See Pauley, 511

F.3d at 474.

           Accordingly, we affirm the 327-month sentence imposed

by the district court on remand.               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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