                      Rehearing granted, July 31, 2003




                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,                 
                 Plaintiff-Appellee,
                 v.                                     No. 02-4827
ALLEN JETT,
               Defendant-Appellant.
                                          
UNITED STATES OF AMERICA,                 
                 Plaintiff-Appellee,
                 v.
ANTOINE DEPAUL MARSHALL, a/k/a                          No. 02-4828
Chim Chim, a/k/a Antone Depaul
Marshall,
              Defendant-Appellant.
                                          
          Appeals from the United States District Court
           for the District of Maryland, at Baltimore.
          William M. Nickerson, Senior District Judge.
                       (CR-96-458-WMN)

                       Submitted: April 30, 2003

                        Decided: May 20, 2003

   Before WIDENER, LUTTIG, and TRAXLER, Circuit Judges.



Affirmed by unpublished per curiam opinion.
2                       UNITED STATES v. JETT
                             COUNSEL

Anthony D. Martin, SOLOMON & MARTIN, Greenbelt, Maryland;
Thomas T. Ruffin, Jr., Washington, District of Columbia, for Appel-
lants. Thomas M. DiBiagio, United States Attorney, Jamie M. Ben-
nett, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.



Unpublished opinions are not binding precedent in this circuit.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


                              OPINION

PER CURIAM:

   Allen Jett was convicted of conspiracy to murder and kidnap in aid
of racketeering, 18 U.S.C. § 1959(a)(5) (2000), conspiracy to retaliate
against federal witnesses, 18 U.S.C.A. §§ 371, 1513 (West 2000 &
Supp. 2002), and conspiracy to distribute a quantity of heroin and
cocaine, 21 U.S.C. § 846 (2000). Antoine DePaul Marshall was con-
victed of participation in the drug conspiracy. Initially, Jett received
a life sentence for the drug conspiracy, a five-year sentence for the
conspiracy to retaliate, and a ten-year sentence for the conspiracy to
murder and kidnap. Marshall received a sentence of 264 months. In
the first appeal, we held that the statutory maximum sentence for the
drug conspiracy for both Appellants was twenty years. Their sen-
tences were vacated and their cases remanded for resentencing in
accordance with Apprendi v. New Jersey, 530 U.S. 466 (2000). Jett
and Marshall now appeal the sentences of 420 months and 235
months they received, respectively, on remand. After consideration of
the issues raised by Appellants, we affirm.

   In this appeal, relying on Apprendi and Ring v. Arizona, 536 U.S.
584 (2002) (applying Apprendi to capital sentencing), Appellants
principally challenge their sentences by contending that the statutory
maximum sentence for the drug conspiracy with which they were
                         UNITED STATES v. JETT                         3
charged, a conspiracy involving "a detectable amount" of cocaine and
heroin, is established by the sentencing guidelines, rather than
§ 841(b), because 18 U.S.C. § 3553(b) incorporates the sentencing
guidelines by reference and mandates their use. They argue that the
statutory sentencing range for a conspiracy to distribute an unspeci-
fied quantity of heroin or cocaine is determined by the guideline
ranges possible for base offense level 12 under § 2D1.1(c)(14), i.e.,
10-37 months, and allege that any fact that would increase their sen-
tence beyond that "statutory" range must be proved to a jury beyond
a reasonable doubt.

   When presented with this argument for the first time at the resen-
tencing hearing, the district court correctly determined that it was pre-
cluded by the mandate rule, which "forecloses relitigation of issues
expressly or impliedly decided by the appellate court," as well as "is-
sues decided by the district court but foregone on appeal." United
States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). In the first appeal, we
concluded that the statutory maximum sentence for the drug conspir-
acy for both Jett and Marshall was twenty years pursuant to
§ 841(b)(1)(C). A trial court may reopen an issue on remand only in
rare circumstances not present here. Bell, 5 F.3d at 67. Therefore, the
district court did not err in refusing to consider this claim.

   For the same reason, we find no merit in Appellants’ related claims
of error concerning the district court’s determination of aggravating
factors affecting their guideline ranges by a preponderance of the evi-
dence. We also reject Jett’s claims that, in his case, the district court
should have grouped together under USSG § 3D1.2(b) the counts for
conspiracy to kidnap/murder and conspiracy to retaliate, and that his
sentences should have been made concurrent rather than consecutive.

   Marshall contends that the district court erred by imposing a five-
year term of supervised release when it resentenced him because no
more than a three-year term was authorized under 18 U.S.C.
§ 3559(a)(3) (2000). That section classifies as a Class C felony an
offense for which the statutory maximum sentence is 10-25 years. A
term of not more than three years supervised release is prescribed for
a Class C felony pursuant to 18 U.S.C. § 3583 (2000), "except as oth-
erwise provided . . . ."
4                       UNITED STATES v. JETT
   Because Marshall did not dispute the five-year supervised release
term at resentencing, the issue is reviewed for plain error. United
States v. Pratt, 239 F.3d 640, 646 (4th Cir. 2001). The district court
did not err because § 841(b)(1)(C) authorizes a supervised release
term of "at least three years," not a minimum term of three years, and
this court has held that the statutory cap in § 3583 "does not apply to
statutes, such as § 841(b)(1)(C), whose own mandatory minimum
periods of supervised release are the same as, or exceed, the maximum
periods provided by § 3583." Pratt, 239 F.3d at 647 (emphasis in
original).

   We therefore affirm the sentences imposed by the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

                                                          AFFIRMED
