                                        File Name: 07a0351n.06
                                          Filed: May 18, 2007

                     NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                              No. 06-5378

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

v.                                                            ON APPEAL FROM THE
                                                              UNITED STATES DISTRICT
WILLIAM E. CLARK,                                             COURT FOR THE EASTERN
                                                              DISTRICT OF TENNESSEE
          Defendant-Appellant.


                                                          /

                                                OPINION

Before:           MARTIN and SUTTON, Circuit Judges; GRAHAM, District Judge.*

          BOYCE F. MARTIN, JR., Circuit Judge. Defendant William Earl Clark challenges his

conviction and sentence, arguing that the government’s indictment did not give him fair notice of

the charges, that the district court’s consideration of his past convictions to enhance his Sentencing

Guidelines range violated the Sixth Amendment, and that the sentence imposed at his resentencing

was unreasonable. For the following reasons, we AFFIRM Clark’s conviction and sentence.

                                                    I.

          The facts of this case, as set forth by our prior opinion in this case, are as follows:



          *
        The Honorable James L. Graham, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 06-5378
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Page 2

               On April 10, 2001, Knoxville Police Department Officers Greg Womac,
       Terry Clowers, Felix Vess, and John Williams entered Apartment 266 of the
       Lonsdale Housing Development in Knoxville, Tennessee, to serve Clark with several
       outstanding warrants for his arrest. Upon entering the apartment’s bedroom, Officer
       Clowers and Officer Womac observed Clark attempting to hide underneath a table
       next to the bed. Following the officers’ instructions, Clark slid out from underneath
       the table and remained lying on the floor face down while Officer Womac
       hand-cuffed him. When Officer Womac attempted to assist Clark to his feet, a
       prescription bottle fell from Clark’s waist area and rolled against the dresser.
       Recovering the bottle, Officer Womac observed what appeared to be approximately
       twenty rocks of crack cocaine inside. A lab test later confirmed that the prescription
       bottle contained 3.58 grams of cocaine base, also known as “crack” cocaine.

United States v. Clark, 112 F. App’x 481, 482 (6th Cir. 2004).

       On December 19, 2001, a federal grand jury charged Clark with one count of possessing with

intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(C). Id. The

indictment failed to specify the quantity of cocaine base in Clark’s possession. On July 23, 2002,

a jury returned a special verdict finding Clark guilty of possessing with intent to distribute 3.58

grams of cocaine base. Id. at 484. On October 16, 2002, Clark was sentenced to 210 months’

imprisonment, to be followed by three years’ supervised release. Joint App’x at 20-21.1 Clark

appealed his conviction, claiming that the indictment’s failure to allege a quantity of cocaine base

violated Apprendi v. New Jersey, 530 U.S. 466 (2000), that the seating of an all-white jury violated

his due process rights under the Sixth and Fourteenth Amendments, and that the trial court erred by



       1
         Clark’s adjusted offense level was 22. Clark was considered a career offender under the
Guidelines because he was found to have committed at least two crimes of violence since he was 18
years old, increasing his total offense level to 32. Clark’s criminal history placed him in a criminal
history category of VI, the highest possible. Based on his total offense level of 32 and his criminal
history category of VI, Clark’s advisory Guidelines range was 210 to 262 months’ imprisonment.
This range was capped at 240 months, the maximum sentence permitted under 21 U.S.C. §
841(b)(1)(C).
No. 06-5378
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Page 3

admitting evidence of his prior acts related to drug sales. Clark, 112 F. App’x at 482. This Court

rejected Clark’s claims and affirmed the judgment of the district court.

       After that appeal, the Supreme Court issued its decision in United States v. Booker, which

held that the Sentencing Guidelines were no longer mandatory. 543 U.S. 220, 245 (2005). Clark

then petitioned to the Court, which granted his petition, vacated our judgment, and remanded the

case for further consideration in light of its decision in Booker. Clark v. United States, 545 U.S.

1101 (2005). On October 1, 2005, we vacated Clark’s sentence and remanded the case to the district

court for resentencing. Joint App’x at 25. Prior to resentencing, Clark filed a motion to dismiss the

indictment, alleging that because the indictment did not specify the amount of cocaine base in his

possession, it did not provide fair notice of the charges and thus violated his due process rights. Id.

at 26-29. The district court denied his motion, explaining:

       In the present case, the scope of the Sixth Circuit’s remand . . . is clear. Only the
       defendant’s sentence was vacated, not his conviction, and this Court’s jurisdiction on
       remand is limited to resentencing the defendant in light of Booker, considering the
       United States Sentencing Guidelines as advisory rather than mandatory. The
       appellate court did not open the door any further than that, and the defendant’s
       attempt to relitigate the matter must be rejected.

Id. at 36. The district court held a resentencing hearing on February 22, 2006, and imposed a

sentence identical to the one it had imposed before: 210 months’ imprisonment to be followed by

three years’ supervised release. Id.

       Clark filed this timely appeal, and argues that the district court erred in determining that it

did not have the authority to address his challenge to the indictment and that the indictment failed

to provide fair notice of the charges against him. Clark also argues that the use of his prior
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Page 4

convictions to enhance the applicable Guidelines range violated his Sixth Amendment right to a jury

trial, and that the sentence imposed by the district court was unreasonable.

                                                 II.

       Clark’s appeal of the district court’s denial of his motion to dismiss the indictment implicates

the mandate rule, which provides that “[o]n remand, the district court is constrained by the scope of

the mandate under which it is operating.” United States v. Haynes, 468 F.3d 422, 425 (6th Cir.

2006) (citing United States v. Moore, 131 F.3d 595, 598 (6th Cir. 1997)). A district court is required

to “implement both the letter and the spirit of the mandate and take into account the circumstances

it embraces.” Id. (citations and internal quotation marks omitted). We review a district court’s

interpretation of our mandate de novo. Id.

       The language used in our remand order demonstrates that we were remanding the case to the

district court for the limited purpose of resentencing in light of the Supreme Court’s decision in

Booker that the Sentencing Guidelines were no longer mandatory. See id. As such, the district

court’s decision to limit its task to resentencing, and not revisit Clark’s argument regarding his

indictment, was proper. United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994) (“[T]he

mandate rule[] requires lower courts to adhere to the commands of a superior court.”).2

       More importantly, Clark’s appeal raises an issue identical to one that had already been

rejected by a prior panel of this Court. In that opinion, the panel held that Apprendi was not violated


       2
        Clark tries to get around the limitation of our remand by arguing that his claim that the
indictment did not provide fair notice of the charges addressed the district court’s jurisdiction to
convict and sentence Clark, and such jurisdictional issues can be addressed by the court at any time.
His contention is wrong, as the Supreme Court has explained that “defects in an indictment do not
deprive a court of its power to adjudicate a case.” United States v. Cotton, 535 U.S. 625, 630 (2002).
No. 06-5378
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Page 5

because his sentence “was based upon a jury’s finding beyond a reasonable doubt that he was

carrying 3.58 grams of crack cocaine.” Clark, 112 F. App’x at 485. Because this Court has already

decided this exact issue, it has become law-of-the-case and is binding upon the district court after

remand and upon us in this appeal. Haynes, 468 F.3d at 426; see also Moored, 38 F.3d at 1421

(“Under the doctrine of law of the case, findings made at one point in the litigation become the law

of the case for subsequent stages of that same litigation.”). Notwithstanding this doctrine, in limited

instances, we may reconsider a prior panel’s ruling. Id. This occurs only where “(1) substantially

different evidence is raised on subsequent trial; (2) where a subsequent contrary view of the law is

decided by the controlling authority; or (3) where a decision is clearly erroneous and would work a

manifest injustice.” Id. (citations omitted). In this case, only the second and third categories are

applicable.

       First, no controlling decisions—that is, no decisions from this Court or the Supreme Court—

have been issued subsequent to our decision in Clark’s first appeal that have altered the legal

landscape in such a way that our prior ruling is no longer good law. Clark also alleges, although

without citing any controlling authority, that the indictment’s failure to allege the specific quantity

of cocaine base attributed to him would work a manifest injustice because it violated the Due Process

Clause’s fair notice clause. In particular, Clark argues that with respect to the amount of drugs and

type of drugs, “the sentencing court usurped the function of the Grand Jury and the petit jury by

interjecting his determination of guilt for that of the jury.” Appellant’s Br. at 12. We disagree.

Apprendi held that any facts that increase a sentence beyond the statutory maximum must be

submitted to a jury and found beyond a reasonable doubt. 530 U.S. at 490. Here, as the prior panel
No. 06-5378
United States v. Clark
Page 6

has already decided, Apprendi was not violated because Clark was sentenced after the jury returned

a special verdict which determined the quantity of cocaine base Clark was carrying at the time of his

arrest. Further, his 210-month sentence does not exceed the twenty-year (240-month) maximum

sentence permitted by the statute he was charged with violating. See 21 U.S.C. § 841(b)(1)(C). In

light of these circumstances, we can say with absolute confidence that affirming Clark’s conviction

and sentence will not work a manifest injustice.

                                                 III.

       Clark next argues that the district court’s consideration of his prior convictions, which

qualified him as a career offender and enhanced his sentence, violated the Sixth Amendment. This

argument cannot stand, as it is contrary to Supreme Court precedent. See Apprendi, 530 U.S. at 490

(“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

(Emphasis added.)); Almendarez-Torres v. United States, 523 U.S. 221 (1998); accord United States

v. Barnett, 498 F.3d 516, 524 (6th Cir. 2005). In support of his argument, Clark relies on Justice

Thomas’s concurrence in Shepard v. United States, 544 U.S. 13, 27 (2005), where he states,

“Almendarez-Torres, like Taylor [v. United States, 495 U.S. 575 (1990)], has been eroded by this

Court’s subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that

Almendarez-Torres was wrongly decided.” While Justice Thomas’s concurrence certainly casts

doubt on the future validity of Almendarez-Torres, we must “leav[e] to the [Supreme] Court the

prerogative of overruling its own decisions.” United States v. Hill, 440 F.3d 292, 299 n.3 (6th Cir.

2006) (quoting Tenet v. Doe, 544 U.S. 1, 11 (2005)) (internal quotation marks omitted). Therefore,
No. 06-5378
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Page 7

we hold that the district court did not err in considering Clark’s prior convictions in order to enhance

his advisory Guidelines range.

                                                 IV.

        Finally, Clark argues that the 210-month sentence imposed at resentencing was unreasonable.

He takes no issue with his initial sentencing, but argues that “[u]pon resentencing . . . the district

court was permitted to consider factors [it] was not permitted to before, such as [Clark’s] lack of bad

institutional record, his maturity, his completion of the GED program, and the strong family support

he still maintained.” Appellant’s Br. at 17. Clark notes the supportive testimony given by his

reverend on his behalf, who claimed that, if given another chance, Clark could make a contribution

to society. Notably, Clark does not actually allege that the district court erred by not considering the

§ 3553(a) factors. He merely argues—without citing any authority—that given his progress since

he was incarcerated, and his reverend’s testimony, a 210-month sentence was unreasonable.

        Following Booker, a sentence imposed by the district court under the now-advisory

Guidelines is reviewed for reasonableness. United States v. Foreman, 436 F.3d 638, 644 (6th Cir.

2006). We review sentences for procedural and substantive reasonableness. United States v.

Collington, 461 F.3d 805, 808 (6th Cir. 2006). “A sentence is procedurally unreasonable if the

district judge fails to consider the applicable Guidelines range or neglects to consider the other

factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate

sentence without such required consideration.” Id. (quoting United States v. Webb, 403 F.3d 373,

383 (6th Cir. 2005)) (internal quotation marks omitted).           “A sentence may be considered

substantively unreasonable when the district court ‘select[s] the sentence arbitrarily, bas[es] the
No. 06-5378
United States v. Clark
Page 8

sentence on impermissible factors, fail[s] to consider pertinent § 3553(a) factors or giv[es] an

unreasonable amount of weight to any pertinent factor.’” Id. (quoting Webb, 403 F.3d at 385).

        We find that Clark’s sentence was both procedurally and substantively reasonable. First, the

district court judge correctly calculated the applicable Guidelines range. Further, although he was

not required to “engage in a ritualistic incantation of the § 3553(a) factors,” in this case, id. at 809,

the district judge did in fact list each of the factors. The district judge then commented that although

the amount of cocaine base found on Clark was relatively small when compared to other criminal

defendants, Clark had an extensive criminal history. Because Clark’s criminal history was so

significant, the district judge gave more weight to the § 3553(a) factors that relate to the seriousness

of the offense, deterrence, and protecting the public.

        Further, it should be noted that in light of our limited remand after the Sentencing Guidelines

became advisory, the district court was not obligated to consider post-incarceration mitigation

factors. United States v. Worley, 453 F.3d 706, 707 (6th Cir. 2006). Nevertheless, the district court

gave Clark, Clark’s counsel, and Clark’s reverend the opportunity to comment on Clark’s progress

since his initial sentencing. Further, he asked Clark whether he had completed his GED. Thus,

although not required to do so, it appears that the district court considered the mitigation evidence

offered by Clark under § 3553(a)(1) (providing that the district judge should consider “the history

and characteristics of the defendant”).

        Given that the district judge considered the § 3553(a) factors and weighed them

appropriately, we find that Clark’s 210-month sentence—which is at the lowest end of his advisory
No. 06-5378
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Page 9

Guidelines range—was procedurally and substantively reasonable. See Collington, 461 F.3d at 810-

11.

                                              V.

       For the reasons above, we AFFIRM Clark’s conviction and sentence.
