                               UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                               No. 08-4774


UNITED STATES OF AMERICA,

                   Plaintiff – Appellee,

             v.

CHRISTOPHER TOBY HAYES,

                   Defendant – Appellant,

             and

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-7)


Submitted:    September 14, 2009            Decided:   November 13, 2009


Before NIEMEYER and DUNCAN, Circuit Judges, 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Affirmed by unpublished per curiam opinion.
Joshua S.    Kendrick, JOSHUA SNOW KENDRICK, P.C., Columbia, 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Unpublished opinions are not binding precedent in this circuit.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:

          Christopher     Toby    Hayes   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.

Hayes appealed, challenging his conviction and sentence.                          We

affirmed Hayes’ conviction and rejected claims relating to his

Guidelines range calculation, but because he was sentenced under

the then-mandatory Sentencing Guidelines, vacated and remanded

for resentencing under 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March 17, 2008) (unpublished) (“Davis I”).

          On    remand,   the    district   court   imposed       a       360-month

variant sentence and Hayes timely appealed.           Hayes asserts that

the district court erred when it refused to conduct a de novo

resentencing on remand.          Specifically, Hayes asserts that the

district court erroneously applied the mandate rule on remand to

bar his objections to his Guidelines range calculation because

he   claims    that   this   court’s      mandate   did     not       limit       his

resentencing or address whether Hayes’ sentence was imposed in

violation of his Sixth Amendment rights.            Finding no error, we

affirm the district court’s judgment.

          We find that the district court correctly applied the

mandate rule to bar Hayes’ objections to his Guidelines range

                                     3
calculation; Hayes either previously raised his objections at

his original sentencing or could have raised them but did 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.”).

               Moreover,       “the   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.

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).



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                 Contrary to Hayes’ assertions, this court’s order in

Davis    I   rejected             Hayes’    objections             to     his    Guidelines             range

calculation and only directed the district court to resentence

Hayes    under         a    non-mandatory          Guidelines             regime.            See    Davis,

270 F. App’x at 248, 256 & n.16.                              Unlike the court’s mandate

discussed        in    United       States        v.       Fields,      552     F.3d       401,     403-04

(4th Cir.        2009)       (holding       that       a    previous          mandate        essentially

ordered      a    de       novo    resentencing             where       the     court      ordered        the

district court “to apply the correct version of the Guidelines

manual”),        Davis       I     did    not     authorize          the       district          court     to

re-calculate Hayes’ Guidelines range on remand.                                         Because Hayes

raises no claims that fall within any of the exceptions to the

law of the case doctrine, his challenges to his Guidelines range

on remand were foreclosed by the mandate rule.

                 We    nonetheless          reject          Hayes’        suggestion             that     the

district court violated the Sixth Amendment when it calculated

his   Guidelines            range     based      on       facts     not       found     by    the       jury.

Because      the       district          court    on        remand       appropriately             treated

Hayes’ Guidelines range as advisory, and since Hayes’ 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)),         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

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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, 551 U.S. 338, 353 (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).

             Although not explicitly challenged by Hayes, we have

reviewed Hayes’ 360-month sentence for reasonableness, using an

abuse of discretion standard of review.                              See Gall v. United

States, 552 U.S. 38, __, 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 or failing to

adequately explain the chosen sentence-including an explanation

for any deviation from the Guidelines range.                              United States v.

                                                  6
Evans, 526 F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct.

476   (2008).       The       court    must       next    consider     the    substantive

reasonableness of the sentence imposed on remand, taking into

account the totality of the circumstances.                      Id. at 161-62.

            While       the   court    presumes          that   a   sentence       within    a

properly calculated Guidelines range is reasonable, see United

States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007), it may not

presume     that    a     sentence      outside          the    Guidelines     range        is

unreasonable.       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.”), cert. denied, 129 S. Ct. 1312 (2009).                               Rather, in

reviewing a sentence outside the Guidelines range, the court

must “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 heard counsel’s argument

regarding    the    weight      that    should       be    afforded     the    §    3553(a)

factors, allowed Hayes an opportunity to allocute and heard from

several individuals who spoke on Hayes’ behalf, and thoroughly

                                              7
considered       the      §     3553(a)     factors         before        imposing     Hayes’

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.

See United States v. Pauley, 511 F.3d 468, 473-76 (4th Cir.

2007); see also United States v. Carter, 564 F.3d 325, 330 (4th

Cir. 2009) (recognizing that the district court must “place on

the record an individualized assessment based on the particular

facts    of   the       case    before     it”    and       that    the    “individualized

assessment      .   .    .     must    provide     a    rationale         tailored    to   the

particular case at hand and [be] adequate to permit meaningful

appellate review”).

              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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