                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-4241


UNITED STATES OF AMERICA,

                                              Plaintiff - Appellant,

           versus


GARY BUTLER,

                                              Defendant - Appellee.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-91-194)


Argued:   June 20, 2005                     Decided:   July 15, 2005


Before WILKINS, Chief Judge, and LUTTIG and TRAXLER, Circuit
Judges.


Affirmed by unpublished per curiam opinion.    Judge Luttig wrote a
dissenting opinion.


ARGUED: Amy Elizabeth Ray, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellant. Noell Peter Tin, TIN, FULTON, GREENE & OWEN, P.L.L.C.,
Charlotte, North Carolina, for Appellee. ON BRIEF: Gretchen C. F.
Shappert, United States Attorney, Charlotte, North Carolina, for
Appellant.


Unpublished opinions are not binding precedent in this circuit.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

     The Government appeals a sentence imposed on Gary Butler,

contending that the district court erred in sentencing Butler

pursuant to United States v. Booker, 125 S. Ct. 738 (2005).

Finding no error, we affirm.


                                      I.

     Butler was convicted of conspiracy to possess with the intent

to distribute an unspecified quantity of cocaine.                 The lengthy

history of this case is recited in previous opinions of this court.

See United States v. Butler, 67 Fed. Appx. 798, 799 (4th Cir. 2003)

(per curiam); United States v. Butler, No. 97-7299, 1999 WL 25555,

at **1 (4th Cir. Jan. 22, 1999) (per curiam).

     Prior to Butler’s latest resentencing, the Supreme Court

decided Booker, overruling our circuit precedent and holding that

the Sixth Amendment is violated when a district court, acting

pursuant   to    the    Sentencing   Reform   Act   (Act)   and   the   federal

sentencing guidelines, imposes a sentence greater than the maximum

authorized by the facts found by the jury alone.            See United States

v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).           Because the Act as

written effectively gave the guidelines the force of law, the Court

recognized that applying the Act and the guidelines as written

would   result     in    Sixth   Amendment     violations     under     certain

circumstances.     See Booker, 125 S. Ct. at 750-51.          To remedy this

problem, the Court severed and excised the provision in the Act

                                       2
mandating sentencing in conformance with the guidelines, see id. at

764 (severing and excising 18 U.S.C.A. § 3553(b)(1) (West Supp.

2005)), thereby rendering the guidelines “effectively advisory,”

id. at 757.1

      In light of this change in the law, the district court

concluded that it was not bound to follow the mandate from our

previous decision, which required imposition of a 20-year guideline

sentence.     Rather, the district court sentenced Butler de novo,

treating the guidelines as advisory and imposing a prison term of

14 years.2


                                     II.

      The Government contends that the district court erred in

sentencing Butler to less than the 20 years required by the mandate

of our last opinion because no exception to the “mandate rule”

applied.     We disagree.

      The mandate rule requires lower courts to “carry the mandate

of   the   upper   court   into   execution   and   ...   not   consider   the

questions which the mandate laid at rest.”          United States v. Bell,

5 F.3d 64, 66 (4th Cir. 1993) (internal quotation marks omitted).


      1
      The Court also severed 18 U.S.C.A. § 3742(e) (West 2000 &
Supp. 2005), which mandated appellate review in conformance with
the guidelines. See Booker, 125 S. Ct. at 764.
      2
      The Government represents that, having completed his prison
sentence, Butler is subject to deportation any time upon the
completion of the process for deportation conducted by the United
States Immigration and Customs Enforcement.

                                      3
However, the trial court does retain discretion to reopen matters

laid to rest in certain “extraordinary circumstances,” namely, upon

a showing “(1) ... that controlling legal authority has changed

dramatically;     (2)   that   significant        new   evidence,   not   earlier

obtainable in the exercise of due diligence, has come to light; or

(3)   that   a   blatant   error   in       the    prior   decision   will,   if

uncorrected, result in a serious injustice.”               Id. at 67 (internal

quotation marks & alterations omitted).

      While it is true that our mandate required imposition of a

20-year sentence, the district court correctly ruled that an

exception to the mandate rule applied because there had been a

dramatic change in controlling sentencing law since we issued our

decision.    After Booker, district courts are no longer required to

treat the guidelines as mandatory, but instead must treat them as

advisory only.     See United States v. White, 405 F.3d 208, 217 (4th

Cir. 2005). This rule directly affected Butler in that the 20-year

sentence ordered by our prior mandate was required only under the

mandatory, not the advisory, regime.

      The Government maintains that Booker did not apply to Butler’s

case, which the Government contends was still on collateral review

when he was last sentenced.      See United States v. Sanders, 247 F.3d

139, 147-48 (4th Cir. 2001) (“New rules of constitutional criminal

procedure are generally not applied retroactively on collateral

review.”).       The Government’s argument fails, however, because


                                        4
collateral relief had been obtained by Butler years earlier when he

obtained a vacatur of his original illegal sentence. Once the case

was remanded to the district court, Butler’s collateral review was

over; there was nothing left to review collaterally.

     It could certainly be said that Butler was fortunate that the

district court twice sentenced him incorrectly, thus continuing his

case long enough for Booker to be decided before the latest

sentence   was   imposed.   But,    it    is   not   unusual   for   temporal

happenstance to control whether a criminal defendant receives the

benefit of a Supreme Court decision.             And, Butler is no less

“deserving” of benefitting from Booker than are any of the other

defendants who happened to have been sentenced after Booker was

decided.   The fact is that when Butler was sentenced, Booker had

already been decided, and that is all that matters.


                                   III.

     In sum, we affirm Butler’s sentence.


                                                                     AFFIRMED




                                    5
LUTTIG, Circuit Judge, dissenting:

     I dissent.   I believe, contrary to the majority, that this

case remains on collateral review and, as a consequence, Butler is

not entitled to the benefit of the Supreme Court’s decision in

United States v. Booker, 125 S. Ct. 738 (2005).




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