                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4310


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

THOMAS JOSEPH DALTON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:03-cr-00739-DCN-1)


Submitted:   May 26, 2011                     Decided:   June 1, 2011


Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jonathan McKey Milling, MILLING LAW FIRM, LLC, Columbia, South
Carolina, for Appellant.     William N. Nettles, United States
Attorney,   Dean  A.   Eichelberger,   Assistant  United States
Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            This case is before the court for the third time.                          We

most recently remanded the case for resentencing.                            See United

States v. Dalton, 477 F.3d 195 (4th Cir. 2007).                         Thomas Joseph

Dalton now claims the district court erred by not considering

his challenges to the revised presentence investigation report

(“PSR”).         He    also     raises     several     issues     challenging        the

procedural       and     substantive         reasonableness       of     the     upward

departure sentence.           Finding no error, we affirm.

            In    Dalton’s         prior   appeal,     this     court    vacated     the

sentence and remanded the case, directing the district court to

explain    the    criminal         history       calculation,    specifying         which

arrests and convictions formed the basis for additional criminal

history points.         The district court was further instructed that

because    Dalton      was    in   Criminal      History   Category     VI,    it   must

depart    incrementally        down    the       sentencing   table     to    the   next

higher offense level until it finds a Guideline range that is

appropriate.          The district court must then explain the reasons

for departure.           Despite the remand, this court concluded that

“the fact remains that an upward departure on the ground that

the criminal history category underrepresented Dalton’s criminal

history was undeniably reasonable.”                 Dalton, 477 F.3d at 198-99.

            We conclude that Dalton’s challenges to any sentencing

enhancements contained in the revised PSR were barred from the

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district court’s consideration, and are barred from this court’s

consideration, under the mandate rule.               Dalton could have raised

his objections in his original appeal 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”).

            In addition, under the law of the case doctrine, “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.

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

Doe v. Chao, 511 F.3d 461, 464-66 (4th Cir. 2007).                  The district

court rejected Dalton’s Guidelines challenges at his prior two

sentencing hearings.         Dalton fails to provide any substantive

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reason     why    the    district      court       should     have       considered       his

arguments once again.

            This     court        reviews    the       district    court’s         sentence,

“whether    inside,      just      outside,       or     significantly       outside      the

Guidelines       range,”     under     a     “deferential         abuse-of-discretion

standard.”       Gall v. United States, 552 U.S. 38, 41 (2007).                           This

abuse-of-discretion standard of review involves two steps; under

the    first,     this   court      examines      the     sentence     for    significant

procedural errors, and under the second, the court reviews the

substance of the sentence.                  United States v. Pauley, 511 F.3d

468, 473 (4th Cir. 2007) (examining Gall, 552 U.S. at 50-51).

Significant procedural errors include “failing to calculate (or

improperly       calculating)        the     Guidelines       range,       treating       the

Guidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a)        factors,    selecting        a     sentence      based       on     clearly

erroneous facts, or failing to adequately explain the chosen

sentence-including          an    explanation       for    any    deviation        from    the

Guidelines range.”               Gall, 552 U.S. at 51.                 If there are no

significant       procedural       errors,       this    court    then    considers        the

substantive       reasonableness        of       the     sentence,       “tak[ing]        into

account the totality of the circumstances.”                      Id.

            When the district court imposes a departure sentence,

this     court     considers       “whether        the     sentencing        court    acted

reasonably both with respect to its decision to impose such a

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sentence and with respect to the extent of the divergence from

the sentencing range.”               United States v. Hernandez-Villanueva,

473 F.3d 118, 123 (4th Cir. 2007).                    This court has recognized,

however, that a district court’s error in applying a departure

sentence is harmless if the sentence is ultimately justified by

the    18   U.S.C.      § 3553(a)      (2006)     sentencing        factors.      United

States v. Evans, 526 F.3d 155, 165 (4th Cir. 2008) (“[E]ven

assuming     the    district      court      erred    in   applying     the    Guideline

departure provisions, [the defendant’s] sentence, which is well-

justified     by    [the]      § 3553(a)      factors,     is    reasonable.”);      see

Puckett v. United States, 129 S. Ct. 1423, 1432 (2009) (stating

that    “procedural          errors     at       sentencing . . . are          routinely

subject to harmlessness review”); United States v. Mehta, 594

F.3d 277, 283 (4th Cir.), cert. denied, 131 S. Ct. 279 (2010)

(citing     cases    supporting        the   proposition        that   harmless    error

review applies to alleged sentencing errors).

             Under      U.S.    Sentencing       Guidelines      Manual      § 4A1.3(a),

the    district     court      may    upwardly       depart   from     the    Guidelines

sentence     if    it   is     determined     that     “the    defendant’s      criminal

history category substantially under-represents the seriousness

of the defendant’s criminal history or the likelihood that the

defendant will commit other crimes[.]”                     The court may consider

prior    sentences       not    used    in    computing       the   criminal    history

category.     See USSG § 4A1.3(2)(A).

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           As       noted,   this   court    previously       ruled    that    the

district   court’s      decision    to   upwardly   depart    was     reasonable.

Dalton, 477 F.3d at 198-99.          Dalton challenges the extent of the

departure.      We have considered his challenges to the procedural

reasonableness of the sentence and conclude there was no error.

Likewise, we conclude there was no error with the substantive

reasonableness of the sentence.              Even if there was error, we

conclude the error would be harmless in light of the fact that

the district court justified the sentence by reference to the 18

U.S.C. § 3553(a) sentencing factors.

           Accordingly,       we    affirm   the    amended    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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