                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-5252



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JAMES SCOTT ROBINSON,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Malcolm J. Howard,
District Judge. (CR-02-80-H)


Submitted:   September 22, 2006           Decided:   November 1, 2006


Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James M. Ayers, II, AYERS, HAIDT & TRABUCCO, P.A., New Bern, North
Carolina, for Appellant.    Frank DeArmon Whitney, United States
Attorney, Anne Margaret Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           James Scott Robinson was convicted of three counts of

conspiracy, in violation of 18 U.S.C.A. § 371 (West 2000); three

counts of armed bank robbery, aiding and abetting, in violation of

18 U.S.C.A. § 2113(a) (West 2000); six counts of brandishing a

firearm during a crime of violence, in violation of 18 U.S.C.A. §

924(c) (West 2000); five counts of interfering with commerce by

robbery, aiding and abetting, in violation of 18 U.S.C.A. § 1951

(West 2000); and two counts of discharging a firearm during and in

relation to a crime of violence, in violation of 18 U.S.C.A.

§ 924(c) (West 2000).          At the initial sentencing hearing, the

district court granted Robinson’s request for a downward departure

for   diminished    capacity    over     the   Government’s   objection   and

sentenced Robinson to a total of 384 months’ imprisonment and five

years’ supervised release.

           Robinson    appealed    his    convictions   and   sentence;   the

Government cross-appealed, contending the district court erred in

granting   the     downward    departure.         We   affirmed   Robinson’s

convictions but reversed his sentence and remanded to the district

court for resentencing.        See United States v. Robinson, 404 F.3d

850, 862 (4th Cir.) (holding that United States v. Booker, 543 U.S.

220 (2005), “did nothing to alter the rule that judges cannot

depart below a statutorily provided minimum sentence” except upon




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the Government’s motion on the basis of substantial assistance)

cert. denied, 126 S. Ct. 288 (2005).1

              At the second sentencing hearing, the district court

imposed   a    term   of   193   years    and   three    months’   imprisonment.

Robinson again appealed. His counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), contending there exist

no meritorious issues for appeal but asserting that the sentence

imposed   by    the   district    court    on   remand    violates   the   Eighth

Amendment’s     prohibition      against    cruel   and   unusual    punishment.

Although notified of his right to submit a pro se supplemental

brief, Robinson has not done so.

              We previously reversed Robinson’s sentence because it was

below the statutory minimum, and remanded for resentencing in

conformity with that opinion.            See Robinson, 404 F.3d at 863.       The

district court resentenced Robinson in accordance with the mandate

rule.    “[I]n the absence of exceptional circumstances, . . . [the

mandate rule] compels compliance on remand with the dictates of a


     1
      The sentence from which the district court departed “was
calculated as follows: 84 months for the first [18 U.S.C.] § 924(c)
[(2000)] conviction, 300 months consecutive for the seven
additional § 924(c) convictions, and 135 months for the armed
robbery counts.”    Robinson, 404 F.3d at 862.      After granting
Robinson a downward departure for diminished capacity, the district
court sentenced Robinson to 384 months’ imprisonment, “running only
the first § 924(c) conviction and one additional § 924(c)
conviction consecutively.”     Id.    This sentence violated the
applicable statute, which “provides, in relevant part, that ‘no
term of imprisonment imposed on a person under this subsection
shall run concurrently with any other term of imprisonment imposed
on the person.’” Id. (quoting 18 U.S.C. § 924(c)(1)(D)(ii) (2000)).

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superior court and forecloses relitigation of issues expressly or

impliedly decided by the appellate court.”                United States v. Bell,

5 F.3d 64, 66 (4th Cir. 1993) (citation and internal quotation

marks omitted).          Furthermore, we noted that while the sentence

Robinson    faced    on    remand       “may    seem   manifestly     unjust    given

Robinson’s age and well-documented intellectual limitations, it is

the result mandated by Congress.”                  Robinson, 404 F.3d at 862.

Although “[s]evere, mandatory penalties” such as those imposed on

Robinson   “may     be    cruel,    .   .   .   they   are   not    unusual    in    the

constitutional sense.”          Harmelin v. Michigan, 501 U.S. 957, 994

(1991).2

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.    We therefore affirm the judgment of the district court.

This court requires that counsel inform Robinson, in writing, of

the right to petition the Supreme Court of the United States for

further review. If Robinson requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then

counsel    may   move     in   this     court    for   leave   to    withdraw       from

representation.      Counsel’s motion must state that a copy thereof

was served on Robinson. We dispense with oral argument because the



     2
      Moreover, “proportionality review is not available for any
sentence less than life imprisonment without the possibility of
parole.” United States v. Ming Hong, 242 F.3d 528, 532 & n.3 (4th
Cir. 2001).

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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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