                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4769


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

DAVID KEITH MILES,

                  Defendant – Appellant,


RANDY MARTIN; LUTHER BRYAN; ALISIA H. AKBAR; LACARIA BROWN;
GEORGEAN   MCCONNELL;   GUSSIE   D.   NOLLKAMPER;  FLORENCE
NOLLKAMPER; CHRISTOPHER M. MORRIS; LAVACA COUNTY TEXAS;
JOSEPH E. MCCONNELL; JOHN M. WARTHER; WELLS FARGO HOME
MORTGAGE, INCORPORATED; CHERYL L. AMAKER; DONNA C. ADKINS;
CHASE MANHATTAN MORTGAGE CORPORATION,

                  Parties-in-Interest.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.   Cameron McGowan Currie, District
Judge. (3:02-cr-00548-CMC-33)


Submitted:    March 25, 2009                 Decided:   April 24, 2009


Before WILLIAMS, Chief Judge, DUNCAN, Circuit Judge, and John
Preston BAILEY, Chief United States District Judge for the
Northern District of West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.
C. Rauch Wise, Greenwood, South Carolina, for Appellant.     W.
Walter Wilkins, United States Attorney, Jane B. Taylor,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            David      Keith     Miles       was       convicted       by    a   jury    of

conspiracy to distribute five kilograms or more of cocaine and

fifty grams or more of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1), 846 (2006), and was sentenced to life in prison.

Miles appealed, challenging his conviction and sentence.                                 We

affirmed Miles’ conviction and rejected claims relating to his

sentence, but because he was sentenced under the then-mandatory

Sentencing    Guidelines,       vacated          and   remanded       for    resentencing

consistent with United States v. Booker, 543 U.S. 220 (2005).

See United States v. Davis, 270 F. App’x 236 (4th Cir. March 17,

2008) (unpublished).

             On    remand,     the   district          court    imposed      a   360-month

variant sentence and Miles timely appealed.                          Miles asserts only

that the district court erred when it calculated his Guidelines

range using factors not found by a jury beyond a reasonable

doubt.       Finding    no     error,       we    affirm       the    district     court’s

judgment.

             After      Booker,         a        sentence        is     reviewed        for

reasonableness, using an abuse of discretion standard of review.

Gall v. United States, 128 S. Ct. 586, 597 (2007).                               The first

step   in   this     review    requires       the      court    to    ensure     that   the

district court committed no significant procedural error, such

as improperly calculating the Guidelines range.                             United States

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v. Evans, 526 F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct.

476 (2008).      Because the district court appropriately treated

the resultant Guidelines range as merely advisory, and since

Miles’ sentence was within the statutory maximum authorized by

the    jury’s   verdict   (i.e.,    life         in    prison,     see    28    U.S.C.

§ 841(b)(1)(A) (2006)), we find that the district court fully

complied with the Sixth Amendment and judicial precedent.                             See

Booker, 543 U.S. at 232-44 (holding that judge found sentence

enhancements    mandatorily      imposed         under     the    Guidelines         that

result in a sentence greater than that authorized by the jury

verdict or facts admitted by the defendant violate the Sixth

Amendment’s guarantee of the right to trial by jury); see also

Rita    v.   United   States,     127       S.   Ct.      2456,    2465-66          (2007)

(recognizing     that     its     “Sixth         Amendment        cases        do     not

automatically    forbid   a     sentencing        court    to     take    account       of

factual matters not determined by a jury and to increase the

sentence in consequence”); United States v. Brooks, 524 F.3d

549, 561-62 (4th Cir.) (“[A] sentencing court is entitled to

find individualized drug quantities by a preponderance of the

evidence, as part of its calculation of an advisory Guidelines

range, . . . so long as its resulting sentence is within the

relevant statutory range.”), cert. denied, Witherspoon v. United

States, 129 S. Ct. 519 (2008).



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            Moreover,    to     the    extent      that     Miles       attempts     to

challenge the substance of the district court’s Guidelines range

calculation, these arguments are foreclosed by the mandate rule

as   they   were   previously    raised      by   Miles     or    could    have    been

raised but were not.          See Volvo Trademark Holding Aktiebolaget

v. Clark Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007) (“[A]

remand proceeding is not the occasion for raising new arguments

or legal theories.”); United States v. Bell, 5 F.3d 64, 66 (4th

Cir.    1993)      (stating     that     the      mandate        rule     “forecloses

relitigation of issues expressly or impliedly decided by the

appellate court,” as well as “issues decided by the district

court but foregone on appeal.”).

            “[T]he 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

Cir.   1999)    (internal     citation    and     quotation      marks    omitted)).

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.




                                         5
Id. (internal citation and quotation marks omitted); see Doe v.

Chao, 511 F.3d 461, 464-66 (4th Cir. 2007) (discussing mandate

rule and its exceptions).            Because Miles’ summary assertions do

not fall within any of the above-mentioned exceptions, he may

not challenge his Guidelines range calculation on this appeal.

             Accordingly,       this     court     must     next   consider      the

substantive reasonableness of the sentence imposed on remand,

taking into account the totality of the circumstances.                        Evans,

526 F.3d at 161-62.          While the court may presume that a sentence

within the Guidelines range is reasonable, it may not presume

that a sentence outside the Guidelines range is unreasonable.

Gall, 128 S. Ct. at 597; see United States v. Abu Ali, 528 F.3d

210, 261 (4th Cir. 2008) (“[A] sentence that deviates from the

Guidelines    is    reviewed     under    the     same    deferential   abuse-of-

discretion standard as a sentence imposed within the applicable

guidelines range.”).           Rather, in reviewing a sentence outside

the Guidelines range, we “consider the extent of the deviation,

but must give due deference to the district court's decision

that the § 3553(a) factors, on a whole, justify the extent of

the variance.”       Gall, 128 S. Ct. at 597.               Even if this court

would have imposed a different sentence, this fact alone will

not justify vacatur of the district court’s sentence.                   Id.

             On    remand,     the     district     court    considered       Miles’

Guidelines range, heard counsel’s argument regarding the weight

                                          6
that should be afforded the § 3553(a) factors, allowed Miles an

opportunity to allocute, and thoroughly considered the § 3553(a)

factors    before    imposing    Miles’    sentence.      We   find    that   the

district court adequately explained its rationale for imposing

the variant sentence, that the sentence was selected pursuant to

a reasoned process in accordance with law, and that the reasons

relied upon by the district court are plausible and justify the

sentence imposed.        Abu Ali, 528 F.3d at 260-61; United States v.

Pauley, 511 F.3d 468, 473-76 (4th Cir. 2007).

            Based on the foregoing, we affirm the district court’s

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




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