                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4102


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TYRELL BELLAMY, a/k/a Clifton Tyrell Evans, a/k/a Psycho,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.  Louise W. Flanagan,
District Judge. (7:08-cr-00042-FL-1)


Submitted:   August 7, 2012                 Decided:   August 14, 2012


Before MOTZ, AGEE, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James S. Perry, PERRY, PERRY & PERRY, Kinston, North Carolina,
for Appellant.     Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Tyrell Bellamy pled guilty to one count of possession

of a firearm by a convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1), 924(a)(2) (2006).                     The district court initially

sentenced Bellamy as an armed career criminal to 235 months’

imprisonment.          Bellamy appealed, and, in an unpublished opinion

following       oral       argument,    we     affirmed      Bellamy’s       conviction,

vacated his sentence, and remanded for resentencing under United

States    v.    Simmons,       649    F.3d    237   (4th    Cir.   2011)     (en     banc).

United States v.           Bellamy,    455    F. App’x      346,   348-49     (4th        Cir.

2011) (No. 09–4355).

               On    remand,     the    district         court   established         a    new

Guidelines range without the armed career criminal enhancement.

The court calculated Bellamy’s Guidelines range under the U.S.

Sentencing Guidelines Manual (“USSG”) (2011) at eighty-four to

105 months’ imprisonment and sentenced Bellamy to 105 months’

imprisonment.          Bellamy appeals, arguing that his Sixth Amendment

right    to    a    jury    trial    was     violated     when   the   district          court

increased       his     base    offense       level       four   levels      under        USSG

§ 2K2.1(b)(6)(B) based on facts not proven to a jury beyond a

reasonable doubt or admitted by him.                     We affirm.

               As an initial matter, we conclude that the mandate

rule does not preclude our consideration of Bellamy’s argument

that     the    district       court    erred       in    imposing     the    four-level

                                              2
enhancement.          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).       Bellamy,        however,      lacked       the

opportunity      or   incentive     in    his    initial      appeal    to    raise    the

Guidelines challenge he now presses because the Guidelines range

calculated and applied at initial sentencing was based on the

district     court’s     determination         that    he   was    an   armed    career

criminal.        Accordingly,      the    mandate      rule    does     not    bar    this

issue.     See United States v. Quintieri, 306 F.3d 1217, 1229-30

(2d   Cir.    2002)      (“[I]f     a    sentencing         determination       had    no

practical     effect     on    a   defendant’s        sentence     at   the    original

sentencing but becomes relevant only after appellate review, a

defendant is free to challenge that sentencing determination on

remand,    and      ultimately     on    reappeal,     despite      the      failure   to

challenge     that     determination       initially.”);          cf.   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.”

(internal quotation marks omitted)).



                                           3
              With respect to the merits of Bellamy’s challenge, we

conclude that his Sixth Amendment right to a jury trial was not

violated      when    the    district         court        increased      his      base    offense

level four levels under USSG § 2K2.1(b)(6)(B).                                     The district

court’s    application         of      the    enhancement           did     not    result       in    a

sentence      greater       than       that    authorized           by    his     guilty        plea.

18 U.S.C. § 924(a)(2).                 Accordingly, the district court did not

violate       the    Sixth     Amendment              in   applying         the    enhancement.

See Rita v. United States, 551 U.S. 338, 352 (2007) (recognizing

that    the      Supreme      Court’s         “Sixth         Amendment           cases     do     not

automatically        forbid        a    sentencing          court    to     take       account       of

factual matters not determined by a jury and to increase the

sentence in consequence”); United States v. Benkahla, 530 F.3d

300,    312    (4th     Cir.       2008)      (holding           that,      as    long     as     the

Guidelines range is treated as advisory, a sentencing court may

consider      and    find    facts       by   a     preponderance           of    the    evidence,

provided that those facts do not increase a sentence beyond the

statutory      maximum);       United         States        v.    Battle,        499    F.3d     315,

322-23 (4th Cir. 2007) (stating that the district court did not

violate    the      Sixth    Amendment         by      imposing      a    sentence        based      on

facts not found by a jury).

              Accordingly,          we   affirm        the       district      court’s     amended

judgment.       We dispense with oral argument because the facts and

legal   contentions          are       adequately          presented      in      the    materials

                                                  4
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




                                    5
