                                UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 14-4428


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

JIMMY JAY STRAYHORN, JR.,

                 Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cr-00368-CCE-1)


Submitted:   January 29, 2015                 Decided:   February 4, 2015


Before GREGORY    and   WYNN,    Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Craig M. Cooley, COOLEY LAW OFFICE, Cary, North Carolina, for
Appellant. Andrew Charles Cochran, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Jimmy         Jay    Strayhorn,           Jr.,       appeals     the     seventy-two

month    sentence           imposed     by     the      district       court        after       he   was

convicted of knowingly carrying and using a firearm during and

in relation to a crime of violence, in violation of 18 U.S.C.

§§ 2,     924(c)(1)(A)(i)               (2012).               Strayhorn        was     originally

convicted of two counts of obstructing commerce by robbery, in

violation       of     18    U.S.C.     §§ 2,       1951(a)         (2012)    (Counts       One      and

Three),       one      count       of     knowingly            carrying        and     using,         by

brandishing, a firearm during and in relation to a crime of

violence,       in     violation        of     18       U.S.C.       §§ 2,     924(c)(1)(A)(ii)

(2012) (Count Two), and one count of carrying and using firearms

during and in relation to a crime of violence, in violation of

18     U.S.C.      §§ 2,      924(c)(1)(A)(i)                (2012)     (Count       Four).          We

previously         vacated        the   sentence             for    Count     Two    because         the

question of whether Strayhorn brandished the firearm had not

been submitted to the jury as required by Alleyne v. United

States,       133      S.     Ct.       2151    (2013),             decided        subsequent         to

Strayhorn’s          initial      sentence.             We    affirmed       Strayhorn’s         other

convictions           and    sentences,         and          remanded        for     resentencing.

United States v. Strayhorn, 743 F.3d 917 (4th Cir. 2014).

              On      appeal,       Strayhorn’s              counsel    has        filed    a    brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating

that     he     has     found      no    meritorious               grounds     for    appeal         but

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questioning         whether      Strayhorn’s         sentence       is      substantively

reasonable.         Strayhorn has filed a pro se supplemental brief

challenging the calculation of his criminal history.                            We affirm

the judgment of the district court.

             Initially, we note that Strayhorn’s pro se claim, a

challenge to his criminal history category, was not raised in

the prior appeal and was not within the scope of our remand.                             It

is therefore foreclosed by the mandate rule.                         See United States

v. Pileggi, 703 F.3d 675, 679-80 (4th Cir. 2013) (“[T]he mandate

rule   forecloses         litigation     of       issues     forgone       on   appeal   or

otherwise waived . . . .” (internal quotation marks, emphasis

and ellipsis omitted)).

             As to counsel’s claim, we review a district court’s

sentence,        “whether     inside,      just      outside,        or     significantly

outside      the    Guidelines      range,”         for     reasonableness       under    a

“deferential        abuse-of-discretion            standard.”          Gall     v.   United

States, 552 U.S. 38, 41, 51 (2007).                          When a district court

imposes      a     sentence      that   falls       outside     of        the   applicable

Guidelines       range,     we   consider         “whether    the    sentencing       court

acted reasonably both with respect to its decision to impose

such a sentence and with respect to the extent of the divergence

from   the       sentencing      range.”           United     States       v.   Hernandez–

Villanueva, 473 F.3d 118, 123 (4th Cir. 2007).                             In conducting

this review, we give due deference to the sentencing court’s

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decision because it has “flexibility in fashioning a sentence

outside of the Guidelines range.”          United States v. Diosdado-

Star, 630 F.3d 359, 364 (4th Cir. 2011).              Having reviewed the

record, we find that the seventy-two month sentence on Count

Two,     including    the     twelve-month    upward       variance,     is

substantively reasonable for the reasons stated on the record by

the district court.

           In accordance with Anders, we have reviewed the entire

record for any meritorious grounds for appeal and have found

none.    Accordingly, we affirm the district court’s judgment.

This court requires that counsel inform Strayhorn, in writing,

of his right to petition the Supreme Court of the United States

for further review.      If Strayhorn requests that a petition be

filed,   but   counsel   believes   that   such   a   petition   would   be

frivolous, counsel may move in this court for leave to withdraw

from representation.        Counsel’s motion must state that a copy

thereof was served on Strayhorn.        We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.

                                                                 AFFIRMED




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