                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-5167


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHARCEIL DAVIS KELLAM, a/k/a Charceil Kellam,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:06-cr-00041-gec-7)


Submitted:   October 5, 2010                 Decided:   December 3, 2010


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant. Timothy J. Heaphy,
United States Attorney, Joseph W. H. Mott, Assistant United
States Attorney, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Charceil Kellam appeals from her life sentence imposed

following conviction by a jury of one count of conspiracy to

distribute fifty grams or more of cocaine base, in violation of

21   U.S.C.    §   846    (2006)   (Count    One),     and   three     counts    of

distribution       of    cocaine   base,    in   violation      of    21     U.S.C.

§ 841(a)(1), (b)(1)(A)-(C) (2006) (Counts Eight, Seventeen, and

Eighteen).      On appeal, Kellam challenges her sentence.                 For the

following reasons, we affirm in part, vacate in part, and remand

for further proceedings.

              Kellam first argues that the district court erred in

sentencing her to life in prison on Counts One and Eight, under

21   U.S.C.    §   841(b)(1)(A),      because    the   Government      failed    to

establish beyond a reasonable doubt that she had the requisite

prior convictions to support the life sentences.                    We previously

remanded    the    case   on   this   ground,    holding     that    in    Kellam’s

initial sentencing, the Government did not prove the predicate

offenses.      United States v. Kellam, 568 F.3d 125, 141-46 (4th

Cir.), cert. denied, 130 S. Ct. 657 (2009).                     We held that,

pursuant to § 841(b)(1)(A), the Government must prove beyond a

reasonable doubt that:

      (1) the defendant committed a federal drug offense
      involving 50 grams or more of cocaine base; (2) the
      defendant had at least two prior convictions; (3) such
      prior convictions were felony drug offenses; and
      (4) such convictions have become final.

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Id. at 141.        Moreover, we held that the Government must prove

that Kellam was the person who committed the prior offenses.

Id. at 142.        As in the initial appeal, we review the district

court’s findings of fact for clear error and its legal rulings

de novo.       Id. at 143. Our review of the record supports the

district    court’s       findings       that     on     remand,           the       Government

established beyond a reasonable doubt that Kellam had two prior

convictions to support her life sentences.

            Kellam also asserts that her life sentences violate

the   Eighth      Amendment.         We     disagree.            “Severe,             mandatory

penalties    may    be     cruel,    but    they        are    not     unusual          in    the

constitutional      sense,      having     been    employed           in    various          forms

throughout our Nation’s history.”                      Harmelin v. Michigan, 501

U.S. 957, 994-95 (1991).             In United States v. Kratsas, 45 F.3d

63,   68   (4th    Cir.    1995),    this       court    held     that          “a    mandatory

sentence of life imprisonment without release, as applied to a

repeat     drug    offender,      did      not     run        afoul        of    the       Eighth

Amendment’s prohibition against cruel and unusual punishment.”

In Kratsas, we applied the three-part test of Solem v. Helm, 463

U.S. 277, 292 (1983), which examines: “(1) the gravity of the

offense    and    the    harshness    of    the    penalty,       (2)        the      sentences

imposed on other criminals in the same jurisdiction, and (3) the

sentences    imposed      for   commission        of    the     same       crime      in     other

jurisdictions.”         Kratsas, 45 F.3d at 66.

                                            3
            Under the first prong of the Solem test, it is clear

that Kellam’s offenses were serious.                       She was charged with being

part of a drug conspiracy that took place over the course of

four years, and was held accountable for between 500 grams and

1.5 kilograms.             Moreover, Kellam was a repeat offender with five

prior drug convictions.                As to the second and third prongs of

the Solem test, a life sentence without release for a major drug

violation     is       not      disproportionate        in      comparison          with    other

sentences under the federal sentencing guidelines or sentences

imposed     by     states       within    the       Fourth      Circuit.            See    United

States v.        D’Anjou,        16   F.3d      604,    613-14         (4th     Cir.       1994).

Therefore,       we    conclude       that    Kellam’s       life      sentences          are   not

constitutionally            disproportionate         and     that   she       has    failed      to

show an Eighth Amendment violation.

            Moreover,            Kellam’s       life       sentences          are         per   se

reasonable.           See United States v. Farrior, 535 F.3d 210, 224

(4th Cir. 2008) (“A statutorily required sentence . . . is per

se   reasonable.”).              Finally,     Kellam’s          request    for       a     reduced

sentence    under          18   U.S.C.   §    3582(c)(2)         (2006)       fails        because

Amendment 706 has no effect on a sentence imposed pursuant to a

statutory mandatory minimum.                    See United States v. Hood, 556

F.3d 226, 233 (4th Cir. 2009).

            We        do    perceive     an   error        in    the    district          court’s

resentencing, however.                In reducing Kellam’s sentence on Counts

                                                4
Seventeen and Eighteen to 235 months’ imprisonment, the district

court exceeded the scope of its mandate on remand from this

court.     A resentencing hearing is generally conducted de novo

unless the court of appeals’ mandate specifically limits the

district     court     to    certain        issues.             United          States    v.

Broughton-Jones, 71 F.3d 1143, 1149 n.4 (4th Cir. 1995) (remand

without limitation); see also United States v. Apple, 962 F.2d

335, 337 (4th Cir. 1992) (remand instruction limited to specific

potential    error).        Here,    this     court       “vacate[d]           the   court’s

application of the enhancement provision and Kellam’s resulting

life sentence” and “remand[ed] that aspect of this appeal for

further     proceedings,     authorizing         the      court       to       permit    the

prosecution    to    properly       support      —   if    it    can       —    the     prior

convictions alleged in the Information.” *                   Kellam, 568 F.3d at

145-46.       This     mandate      was     precise       and     unambiguous,           and

instructed    the    district    court      to   correct        one    specific         error

only.     Furthermore, none of the exceptions to the mandate rule

noted in United States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993),

are applicable in this case.                Accordingly, the district court



     *
       To the extent the district court may have been misled by
our more general sentence closing the opinion, “we vacate
Kellam’s sentence . . . and remand for such further proceedings
as may be appropriate,” this language did not override our
prior, more specific direction.



                                          5
erred by conducting a de novo resentencing and reducing Kellam’s

sentence on Counts Seventeen and Eighteen.

            We affirm the life sentences imposed by the district

court on Counts One and Eight.           However, we vacate Kellam’s

sentence on Counts Seventeen and Eighteen and remand the case to

the district court with instructions to reinstate the original

360-month   sentences   on   those   counts.   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 IN PART,
                                                           AND REMANDED




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