                               UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                               No. 08-4775


UNITED STATES OF AMERICA,

                   Plaintiff – Appellee,

             v.

MARQUEL DUSHUAN RILEY, a/k/a Mark Riley,

                   Defendant – Appellant,

             and

RANDY MARTIN; LUTHER BRYAN; ALISIA H. AKBAR; LACARIA BROWN;
GEORGEAN   MCCONNELL;   GUSSIE   D.   NOLLKAMPER;  FLORENCE
NOLLKAMPER; CHRISTOPHER M. MORRIS; LAVACA COUNTY TEXAS;
JOSEPH E. MCCONNELL; JOHN M. WARTHER; WELLS FARGO HOME
MORTGAGE, INCORPORATED; CHERYL L. AMAKER; DONNA C. ADKINS;
CHASE MANHATTAN MORTGAGE CORPORATION,

                   Parties-in-Interest.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.   Cameron McGowan Currie, District
Judge. (3:02-cr-00548-CMC-18)


Submitted:    December 16, 2009              Decided:   January 4, 2010


Before NIEMEYER and DUNCAN, Circuit Judges, and John Preston
BAILEY, Chief United States District Judge for the Northern
District of West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.
Lourie A. Salley, III, Lexington, South Carolina, for Appellant.
W. Walter Wilkins, United States Attorney, Jane B. Taylor,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Marquel    Dushuan      Riley      was    convicted   by       a    jury   of

conspiracy to distribute five kilograms or more of cocaine and

fifty grams or more of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1), 846 (2006), and was sentenced to 272 months in

prison.        Riley   appealed,        challenging         his   conviction           and

sentence.        We affirmed Riley’s conviction but because he was

sentenced      under   the      then-mandatory         Sentencing       Guidelines,

vacated and remanded for resentencing under United States v.

Booker, 543 U.S. 220 (2005).            See United States v. Davis, 270 F.

App’x 236 (4th Cir. March 17, 2008) (unpublished) (“Davis I”).

            On    remand,     the   district     court      imposed    a       200-month

variant sentence and Riley timely appealed.                   Riley asserts that

his variant sentence should be vacated because he argues that

the   district      court     erred     when     it    enhanced       his      original

Guidelines range based on his possession of a dangerous weapon

during the commission of the crime for which he was convicted.

According to Riley, the Supreme Court’s decision in District of

Columbia v. Heller, 128 S. Ct. 2783 (2008), requires a district

court to exercise “greater scrutiny” before enhancing a sentence

for   lawful     possession    of   a   firearm,      and   “require[s]         a   nexus

between possession of a firearm and commission of the crime.”

Finding no error, we affirm the district court’s judgment.



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               We    find       that     any        arguments        pertaining          to    the

calculation of Riley’s Guidelines range are barred from this

court’s     consideration          under       the    mandate        rule;    Riley        either

previously raised his objections at his original sentencing and

on his first appeal, or could have raised them but did not.                                    See

Volvo     Trademark        Holding       Aktiebolaget          v.     Clark        Mach.      Co.,

510 F.3d 474, 481 (4th Cir. 2007) (“[A] remand proceeding is not

the occasion for raising new arguments or legal theories.”);

United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (stating

that     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.”).

               Moreover,        “the   doctrine        [of     the    law     of    the       case]

posits    that      when    a    court    decides       upon    a    rule     of    law,      that

decision should continue to govern the same issues in subsequent

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

655, 661 (4th Cir. 1999) (internal citation and quotation marks

omitted).       The law of the case must be applied

        in all subsequent proceedings in the same case in the
        trial court or on a later appeal . . . unless: (1) a
        subsequent   trial  produces  substantially  different
        evidence, (2) controlling authority has since made a
        contrary decision of law applicable to the issue, or
        (3) the prior decision was clearly erroneous and would
        work manifest injustice.



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Id. (internal citation and quotation marks omitted); see Doe v.

Chao, 511 F.3d 461, 464-66 (4th Cir. 2007) (discussing mandate

rule and its exceptions).

              This    court’s      mandate       in   Davis     I     only    directed      the

district      court     to    resentence         Riley        under     a     non-mandatory

Guidelines regime.           See Davis, 270 F. App’x at 248, 256 & n.16.

Because Riley points to no circumstances that would allow this

court    to   consider       his    Guidelines         range    calculation         on     this

appeal, Riley’s challenge to his Guidelines range is foreclosed

by the mandate rule.

              Riley’s    suggestion         that       Heller       altered     the      legal

landscape, thereby excepting his Guidelines range challenge from

the mandate rule, is meritless.                       Heller held that the Second

Amendment secures an individual’s right to keep handguns in the

home    for   self-protection.              Heller,      128    S.     Ct.     at   2821-22.

Heller also emphasized, however, that the opinion should not

“cast doubt on longstanding prohibitions on the possession of

firearms by felons and the mentally ill, or laws forbidding the

carrying of firearms in sensitive places such as schools and

government       buildings,         or      laws       imposing         conditions          and

qualifications on the commercial sale of arms.”                             Id. at 2816-17.

Because the Supreme Court explicitly stated that it identified

“these     presumptively           lawful     regulatory            measures        only    as

examples”      and     that     its      “list        [did]     not     purport       to     be

                                             5
exhaustive,”        id.    at   2817   n.26,     Heller       had    no    effect     on    the

Guidelines’ directive to enhance a Guidelines range if a weapon

was     present     during      the    commission        of   a     crime.        See      U.S.

Sentencing Guidelines Manual § 2D1.1(b)(1) & cmt. n.3 (2008).

Because Heller is not “controlling authority [that] has since

made    a    contrary      decision     of   law    applicable            to   the    issue,”

Riley’s objection to his weapons enhancement is not excepted

from the mandate rule.

              Based on the foregoing, we affirm the district court’s

judgment.         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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