                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4547


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DWIGHT LAMAR SPEARS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:08-cr-00112-HFF-3)


Submitted:   May 13, 2011                  Decided:   May 27, 2011


Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.


John M. Ervin, III, Darlington, South Carolina, for Appellant.
William N. Nettles, United States Attorney, William J. Watkins,
Jr.,   Assistant  United States   Attorney,  Greenville,  South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          We       affirmed       Dwight   Lamar   Spears’   conviction       for

conspiracy    to    murder    a    law   enforcement   officer   in   his   prior

appeal.   See United States v. Spears, 350 F. App’x 808 (4th Cir.

2009) (“Spears I”).          Although we affirmed Spears’ conviction, we

remanded for resentencing because the trial facts revealed a

violation of 18 U.S.C.A. § 1114 (West Supp. 2010), rather than a

violation of 18 U.S.C. § 115(a)(1)(A) (2006). ∗

          The transcript of the resentencing hearing on remand

reveals that the district court and Spears understood that the

matter was remanded for Spears to be resentenced under § 1114.

(J.A. 180-81, 193-94).            The court again sentenced Spears to 240

months of imprisonment.            (J.A. 194, 206).     Nonetheless, despite

the parties’ and the district court’s clear understanding that

Spears was to be resentenced under § 1114, the second amended

criminal judgment denotes that Spears’ conviction was pursuant

to § 115(a)(1)(A).


     ∗
       In vacating and remanding, we primarily relied on two
cases.   See United States v. Massuet, 851 F.2d 111, 115 (4th
Cir. 1988)(noting that the proper procedure for dealing with the
problem of an erroneously cited statute would be to remand the
case for resentencing under the proper statute); United States
v. Bennett, 368 F.3d 1343, 1352-55 (11th Cir. 2004) (holding
that sufficient evidence supported a conviction for attempt to
kill an officer of the United States, under 18 U.S.C. § 1114,
where the defendant was actually charged with violating 18
U.S.C. § 115), vacated on other grounds, 543 U.S. 1110 (2005).



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             Although we grant Spears’ motion to file his pro se

supplemental      brief,    we    decline       to   address     any       of   the   issues

raised in that brief or his formal brief, as those issues are

all outside the scope of our mandate on remand.                                 The mandate

rule is “merely a specific application” of the law of the case

doctrine, which “forecloses relitigation of issues expressly or

impliedly decided by the appellate court.”                        United States v.

Bell, 5 F.3d 64, 66 (4th Cir. 1993) (internal quotation marks

omitted).         The   doctrine     applies         both   to   questions         actually

decided as well as to those decided by necessary implication.

Sejman v. Warner–Lambert Co., 845 F.2d 66, 69 (4th Cir. 1988).

All of the issues raised in Spears’ formal and informal briefs

are unrelated to our limited remand in Spears I.                            Thus, because

Spears fails to establish any of the exceptions to the mandate

rule, we decline to address on the merits any of the issues

raised in this appeal.            United States v. Aramony, 166 F.3d 655,

661   (4th    Cir.      1999)      (discussing         doctrine        and       exceptions

thereto).     Thus, we affirm Spears’ 240-month sentence.

             We   remand,       however,    for      correction       of    the    clerical

error in the second amended judgment, showing that Spears was

convicted    under      § 115    rather    than      § 1114,     as    we       directed   in

Spears I.     See Fed. R. Crim. P. 36; Rakes v. United States, 309

F.2d 686, 687-88 (4th Cir. 1962) (addressing correction under

Rule 35).      To the extent that there is a conflict between the

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court’s     comments   at   the    sentencing    hearing    and   the    criminal

judgment, a court “should carry out the true intention of the

sentencing judge as this may be gathered from what he said at

the time of sentencing.”           United States v. Morse, 344 F.2d 27,

30   (4th   Cir.   1965).     It    is   normally   the    rule   that   where   a

conflict exists between an orally pronounced sentence and the

written judgment, the oral sentence will control.                 United States

v. Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003).                   The remedy

is to vacate the judgment and remand to the district court for

the purpose of correcting the written judgment to conform to the

oral sentence.      Morse, 344 F.2d at 30-31 & n.1; Rakes, 309 F.2d

at 687.

             Accordingly, we affirm Spears’ 240-month sentence for

conspiracy to murder a law enforcement official under § 1114 but

remand for correction of the clerical error made in the district

court’s second amended criminal 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 IN PART;
                                                VACATED AND REMANDED IN PART




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