                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4202


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WILLIAM DAVID WILSON, a/k/a Pudgie,

                Defendant - Appellant.



                            No. 13-4306


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WILLIAM DAVID WILSON, a/k/a Pudgie,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Terrence W. Boyle,
District Judge. (3:94-cr-00065-BO-12)


Submitted:   December 12, 2013            Decided:   December 18, 2013


Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Mary Jude Darrow, LAW OFFICE OF MARY JUDE DARROW, Raleigh, North
Carolina, for Appellant.     Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            In    these      consolidated        appeals,        William      David   Wilson

appeals     the    amended        judgment       of    conviction           entered    after

resentencing, and the order denying his motion to correct the

sentence.         Wilson’s     counsel      has       filed      a    brief      pursuant    to

Anders v. California, 386 U.S. 738 (1967), certifying that there

are   no   meritorious        issues      for    appeal       but      adopting     Wilson’s

arguments that he raises in his pro se supplemental brief.                                  The

Government did not file a brief.                 We affirm.

            After granting Wilson’s 28 U.S.C. § 2255 (2012) motion

and ordering resentencing based on a favorable adjustment to

Wilson’s criminal history category, the district court sentenced

Wilson     to    210   months’         imprisonment        for       his   conviction       for

conspiracy to possess with intent to distribute in excess of

twenty-five       kilograms       of    crack    cocaine      and      a   consecutive       60

month    sentence      for    his      conviction      for    using        and    carrying    a

firearm    during      and   in     relation     to    a   drug       trafficking     crime.

Wilson was also resentenced to five years’ supervised release

for the drug conspiracy conviction and three years’ supervised

release for the firearm conviction, to run concurrently.                                    The

resulting sentence was ninety months lower than the original

sentence and below the recalculated Guidelines sentence.

             Wilson contends that his sentence is unlawful because

it is based upon a drug quantity not found by the jury beyond a

                                             3
reasonable doubt.      Wilson claims that at trial the jury was not

asked    to    determine    the   amount    of   crack   cocaine    that   was

reasonably foreseeable to him as part of the drug conspiracy.

He further claims that he was susceptible to sentencing under 21

U.S.C. § 841(b)(1)(A) (2012), with a ten year minimum sentence

and a maximum sentence of life.            He contends he should have been

sentenced pursuant to § 841(b)(1)(C), with a maximum sentence of

twenty years’ imprisonment.

              Wilson did not raise these issues at sentencing or at

resentencing.      Thus, review is for plain error.            See Fed. R.

Crim. P. 52(b); Olano v. United States, 507 U.S. 725, 731-32

(1993); United States v. Mackins, 315 F.3d 399, 405-06 (4th Cir.

2003).    Wilson must show that an error occurred, that the error

was plain, and that the error affected his substantial rights.

Even if Wilson were to satisfy these requirements, we will not

exercise our discretion to address the errors unless the errors

substantially      affect     the    fairness,     integrity       or   public

reputation of the proceedings.        Olano, 507 U.S. at 732.

              Because Wilson’s sentence of 210 months’ imprisonment

for the drug conspiracy is below the statutory maximum sentence

of twenty years authorized by 21 U.S.C. § 841(b)(1)(C) there is

no error.      United States v. Angle, 254 F.3d 514, 518 (4th Cir.

2001).



                                      4
               Wilson    also    contends       that    the     district        court    erred

finding    that    he    was    responsible       for    11.7       kilograms      of    crack

cocaine.        However, as the district court noted, this issue was

resolved when Wilson filed his 18 U.S.C. § 3582(c) (2012) motion

seeking     a    sentence       reduction       based     on        amendments      to    the

Sentencing       Guidelines.         The    court       found       that   at    sentencing

Wilson was held responsible for 11.7 kilograms of crack cocaine

and was not eligible for a reduction to the Guidelines sentence.

This court affirmed.            United States v. Wilson, No. 09-8087, 2010

WL 1784732, *1 (4th Cir. May 5, 2010) (unpublished).                                Because

the    issue    was     previously    decided       by    the       district     court     and

affirmed by this court, the finding that Wilson was responsible

for 11.7 kilograms of crack cocaine is the law of the case.

Therefore,       the    finding   governs       the     same    issue      in    subsequent

stages of the same case.               United States v. Aramony, 166 F.3d

655, 661 (4th Cir. 1999).              Accordingly, the district court did

not err in not considering arguments that Wilson was responsible

for a lesser quantity of crack cocaine.

               Wilson     also     contends        that        the     indictment         was

constructively amended based on the allegation that the jury was

instructed that it should find whether or not Wilson violated

the law with respect to possession of cocaine instead of cocaine

base.     Because Wilson did not raise this issue on direct appeal,

when    his      convictions      were      affirmed,          or     at   resentencing,

                                            5
consideration of this issue at this juncture of the proceedings

is foreclosed.            United States v. Bell, 5 F.3d 64, 66-67 (4th

Cir. 1993).

              Wilson also argues that under Apprendi v. New Jersey,

530 U.S. 466 (2000), he should have only received three years of

supervised         release       instead       of       five    for    the    drug     conspiracy

conviction.            Under 21 U.S.C. § 841(b)(1)(A), a defendant may

receive      “at       least     5    years”        of       supervised      release.          Under

§ 841(b)(1)(C), the default sentencing provision if there is no

drug quantity found by the jury, a defendant may receive “at

least    3    years”       of       supervised          release.        Wilson     argues       that

because he should have been sentenced under § 841(b)(1)(C), he

should only receive three years of supervised release instead of

five.     Wilson did not raise this issue at sentencing either and

review is for plain error.

              After considering this claim in light of the Supreme

Court’s opinion in Alleyne v. United States, 133 S. Ct. 2151

(2013)    (holding          that      any    fact        that    increases       the     statutory

mandatory         minimum      is    an     element       of    the    offense     and    must    be

submitted         to   jury     and       found     beyond       a    reasonable       doubt),    we

conclude      that       while       there    may       be     plain    error    that    affected

Wilson’s      substantial            rights,      we     decline       to    notice     the    error

because      it    did    not       affect    the       fairness,       integrity       or    public

reputation of the proceedings.                      Olano, 507 U.S. at 732.                  We note

                                                    6
that the overwhelming evidence supports the finding that it was

reasonably foreseeable to Wilson that it was within the scope of

the conspiracy agreement to distribute at least 280 grams of

crack cocaine.         See United States v. Cotton, 535 U.S. 625, 632-

33   (2002).      We    further    note    that       the    five    year    period   of

supervised       release     was    not         greater      than     permitted       by

§ 841(b)(1)(C).         See United States v. Pratt, 239 F.3d 640, 647-

48 (4th Cir. 2001).

            The district court’s 210 month sentence is reviewed

for reasonableness pursuant to an abuse of discretion standard.

United   States    v.    Diosdado-Star,         630   F.3d    359,    365    (4th    Cir.

2011); see also Gall v. United States, 552 U.S. 38, 51 (2007);

Rita v. United States, 551 U.S. 338, 350 (2007).                            This review

requires consideration of both the procedural and substantive

reasonableness of the sentence.               Id.; see United States v. Lynn,

592 F.3d 572, 575 (4th Cir. 2010).                We must first decide whether

the district court correctly calculated the defendant’s advisory

Guidelines range, considered the § 3553(a) factors, analyzed the

arguments presented by the parties, and sufficiently explained

the selected sentence.             Id. at 575-76; see United States v.

Carter, 564 F.3d 325, 330 (4th Cir. 2009).

            We    have     reviewed       the     resentencing        and     find     no

procedural or substantive error.                  Accordingly, we affirm the

sentence.

                                          7
            In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm the amended judgment of conviction and the

order denying the motion to correct the sentence.                                   This court

requires that counsel inform Wilson, in writing, of the right to

petition   the      Supreme       Court    of       the   United       States      for   further

review.        If   Wilson       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 Wilson.              We deny Wilson’s motion to proceed pro

se.     Because we permit a pro se litigant to file a pro se

supplemental        brief    in    a   case     under         Anders,    we    deny      as   moot

Wilson’s motion to file a pro se brief.                         We also deny his motion

to    strike     counsel’s        Anders      brief.           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




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