                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-5008



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


BRICEIDA MITRE,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, District
Judge. (CR-03-327)


Submitted:   June 30, 2006                 Decided:   December 8, 2006


Before WILKINSON, WILLIAMS, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John D. Brosnan, WATERS & WISE, PLLC, Fairfax, Virginia, for
Appellant.   Paul J. McNulty, United States Attorney, Kevin R.
Gingras, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Briceida     Mitre     appeals      the     sentence     imposed    on

resentencing in light of United States v. Booker, 543 U.S. 220

(2005), for conspiracy to possess with intent to distribute one

kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1),

846 (2000), and conspiracy to import one kilogram or more of

heroin, in violation of 21 U.S.C. §§ 952(a), 963 (2000).              Mitre was

sentenced to 120 months in prison.            She timely appealed.

           In    her   first    direct    appeal,      Mitre   challenged     her

conviction on three bases, including that the district court’s

supplemental jury instruction in response to a question from the

jury was plain error.        During its deliberation, the jury asked the

court whether they had to find the drug quantity attributable only

to Mitre or to the conspiracy as a whole.            The court instructed the

jury that it “should determine what the Government has proven

beyond a reasonable doubt that relates to the conspiracy.”                     At

trial,   Mitre   did   not     object    to   the    instruction.     The     jury

thereafter convicted Mitre of one kilogram or more on both counts.

           Mitre argued in her first appeal that the instruction

failed to inform the jury that she could only be held responsible

for the drug quantities of the other conspirators if they were

reasonably foreseeable and in furtherance of the conspiracy.                  The

panel, relying on United States v. Collins, 401 F.3d 212, 220 (4th

Cir. 2005) (Collins I), held that the district court’s instruction


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did not violate Mitre’s substantial rights and therefore she did

not demonstrate plain error. However, because the panel found that

her   sentence   violated    Booker,      the   case   was   remanded   for

resentencing.    Mitre filed a petition for rehearing, which was

denied.   Seven days before the mandate issued in Mitre’s case, the

court, on petition for rehearing, reversed Collins I and issued a

new opinion in United States v. Collins, 415 F.3d 304 (4th Cir.

2005) (Collins II).   Collins II reversed the prior panel decision

holding that any error in the supplemental jury instruction was

harmless and held that the improper jury instruction invalidated

the quantity of drugs determined at trial and the conviction could

only be upheld on a finding of a default quantity of drugs.

Collins II, 415 F.3d at 311-15.

           At Mitre’s resentencing hearing, Mitre’s counsel argued

that the mandate rule should not apply and the district court

should apply Collins II when determining the amount of drugs

attributable to Mitre.      Because the district court’s supplemental

instruction was error, Mitre contended that, under Collins II, she

should be sentenced using a default, lowest level, drug amount.

The district court held that it was only permitted to reconsider

the sentence in light of this court’s mandate with regard to Booker

error. The district court therefore sentenced Mitre to the minimum

statutory sentence under 21 U.S.C. § 841(b)(1)(A)(i) (2000).            The

court did not make additional or renewed findings on drug quantity.


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Therefore the 4.5 kilograms originally found by the district court

as attributable to Mitre was still valid.

          Mitre argues that the district court violated her Sixth

Amendment rights when it sentenced her based on drug quantity not

found by a jury due to the erroneous jury instruction.         She

contends that she should have been sentenced based on a default

drug quantity, as outlined in Collins II.     She claims that the

court should have imposed a sentence consistent with the default

quantity under 21 U.S.C. § 846 (2000) (penalty provisions found at

21 U.S.C. § 841) after considering the advisory guideline range.

Mitre, however, bases her argument on the default, or lowest drug

amounts found in U.S. Sentencing Guidelines Manual § 2D1.1 (2003).

She claims that under USSG § 2D1.1, for less than five grams of

heroin attributable and her established criminal history category

of I, the advisory sentencing guidelines range would be 10-16

months of imprisonment.

          The mandate rule is a “‘specific application of the law

of the case doctrine.’”   United States v. Bell, 5 F.3d 64, 66 (4th

Cir. 1993) (quoting United States v. Bell, 988 F.2d 247, 251 (1st

Cir. 1993)).   Generally, “‘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




                               - 4 -
Cir. 1999) (quoting Christianson v. Colt Indus. Operating Corp.,

486 U.S. 800, 815-16 (1988)).   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. (quoting Sejman v. Warner-Lambert Co., 845 F.2d 66, 69 (4th

Cir. 1988)); see S. Atl. Ltd. P’ship of Tenn. v. Riese, 356 F.3d

576, 583 (4th Cir. 2004) (discussing “mandate rule, which has been

characterized as a more powerful version of the law of the case

doctrine”) (internal quotation marks and citation omitted).

          We conclude that the mandate rule applies because there

is no exception to bar its application.     Although, in upholding

Mitre’s conviction in her first direct appeal, we cited Collins I

for the proposition that the error complained of did not affect

Mitre’s substantial rights, the reversal of the Collins case in no

way affects the controlling authority governing Mitre’s case.

Collins involved harmless error review, while Mitre involves plain

error review.

          The different requirements for harmless error and plain

error make it clear that the outcome in Collins II does not dictate

the outcome of Mitre.    The fact that the Government in Collins

failed to prove beyond a reasonable doubt that the error complained

of was not substantial does not compel the conclusion that Mitre


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met her burden of proof in showing that a similar error was

substantial.   And, even if it did, plain error review further

requires the court to find that the error “seriously affect[ed] the

fairness, integrity, or public reputation of judicial proceedings.”

United States v. Carr, 303 F.3d 539, 543 (4th Cir. 2002).   That is

not the case here where the defendant has been found responsible

for 4.5 kilograms of heroin and even remand for resentencing to the

statutory default would yield a sentence between zero and twenty

years, a range consistent with the defendant’s existing sentence of

ten years. We therefore conclude that the mandate rule applies and

even if it did not, Mitre cannot demonstrate plain error resulting

from an erroneous jury instruction under Collins.

          Even if the mandate rule did not apply, and the district

court had considered Collins II, there is no Sixth Amendment error

in Mitre’s sentence. The statutory penalty provisions of 21 U.S.C.

§ 841(b)(1)(C) (2000) would have been applicable because the

default drug amount would be less than 100 grams of heroin.    The

statutory range would then be zero to twenty years of imprisonment.

As noted above, Mitre’s ten-year sentence falls within that range.

          On resentencing, the district court believed that it was

bound by the jury verdict of one kilogram of heroin in determining

the statutory sentencing range.       That range, under 21 U.S.C.

§ 841(b)(1)(A)(i) is a minimum of ten years and maximum of life

imprisonment. Even if the district court mistakenly concluded that


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it   was     operating   under    21   U.S.C.   §     841(b)(1)(A)(i),    such   a

conclusion would not be reversible error.                 The guideline range,

based on a drug quantity of 4.5 kilograms of heroin, was 151-188

months of imprisonment--a range above the sentence imposed.*

               We therefore affirm Mitre’s sentence.           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




       *
      We note that Mitre’s argument that the court is bound by the
default level of quantity found in the sentencing guidelines is
faulty. After Booker, the district court may still determine the
amount of drugs attributable to the defendant, which may be above
the amount authorized by the jury verdict. However, the guideline
range based on that drug quantity is advisory.

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