UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 98-4594

SWANSON DALTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CR-93-171)

Submitted: March 9, 1999

Decided: April 22, 1999

Before WILKINS and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Kevin M. Schad, SCHAD, BUDA, COOK, L.L.C., Cincinnati, Ohio,
for Appellant. Robert P. Crouch, Jr., United States Attorney, Joseph
W.H. Mott, Assistant United States Attorney, Roanoke, Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Swanson Dalton was convicted in 1994 of conspiracy to distribute
and to possess cocaine with intent to distribute, 21 U.S.C. § 846
(1994), and attempting to possess cocaine with intent to distribute, 21
U.S.C. § 841(a) (1994). He appealed his conviction on the ground of
prosecutorial misconduct and also contested his career offender sen-
tence of 360 months imprisonment. We affirmed the conviction and
sentence. After two of his prior state convictions were overturned,
Dalton sought federal habeas relief and the district court ordered
resentencing. At the resentencing hearing, Dalton challenged for the
first time his four-level adjustment for having a leadership role in the
conspiracy, see U.S. Sentencing Guidelines Manual § 3B1.1(a)
(1997), arguing that an intervening change in the law made the adjust-
ment unwarranted. The district court again found that the adjustment
applied and imposed a sentence of 200 months imprisonment. Dalton
appeals this sentence. We affirm.

Because Dalton failed to contest the role adjustment at the first sen-
tencing or in his first appeal, he has waived the issue unless it comes
within one of the exceptions to the mandate rule. See United States
v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). The rule forecloses litigation
of issues not raised in the district court or foregone on appeal unless
the "controlling legal authority has changed dramatically," significant
new evidence has come to light, or a blatant error in the prior decision
will result in serious injustice if not corrected. Id. at 67 (quoting
United States v. Bell, 988 F.2d 247, 251 (1st Cir. 1993)).

Dalton argues that our decision in United States v. Capers, 61 F.3d
1100 (4th Cir. 1995), changed the controlling authority within this cir-
cuit by finding that the defendant must have controlled other partici-
pants, not merely drugs or money, for an adjustment under § 3B1.1
to apply. However, Capers simply interpreted the 1993 amendment

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to the commentary to § 3B.1, finding that the amendment changed the
standard for applying the adjustment and "had the effect of changing
the law in this circuit." Capers, 61 F.3d at 1110. The amendment was
in effect when Dalton was first sentenced. No change in the law
occurred between his first and second sentencing. Consequently, we
find that the issue was waived when Dalton failed to raise it in his
first sentencing and appeal. It was not properly raised at the resen-
tencing hearing and is not properly before us in this appeal.

Therefore, we affirm the 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

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