UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4124

QUINTON D. RAINEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Rebecca B. Smith, District Judge.
(CR-94-69)

Submitted: February 24, 1998

Decided: April 14, 1998

Before MURNAGHAN, WILKINS, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Jon M. Babineau, Norfolk, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Fernando Groene, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________
OPINION

PER CURIAM:

Quinton D. Rainey appeals the statutorily required 240-month sen-
tence imposed by the district court on remand at the direction of this
court. We affirm the sentence.

Rainey was convicted of conspiracy to distribute crack cocaine and
possession of crack cocaine with intent to distribute, see 21 U.S.C.
§§ 841, 846 (1994). At his original sentencing hearing, he did not dis-
pute that he had a prior felony drug conviction or that the instant
offense involved more than fifty grams of crack. Although Rainey
was subject to a mandatory sentence of at least 240 months, the dis-
trict court imposed a sentence of 135 months.* The government
appealed the sentence. We vacated the sentence, finding that it was
"imposed in clear violation of a mandate of Congress" and remanded
for resentencing.

In this appeal, Rainey argues that the original sentence was justi-
fied as a departure below the statutory minimum for substantial assis-
tance, see U.S. Sentencing Guidelines Manual§ 5K1.1, p.s. (1994), or
as a departure under USSG § 5K2.0, p.s., due to his poor health. He
contends that the same sentence should have been reimposed on
remand. However, the district court may depart below a mandatory
minimum sentence only on a government motion pursuant to USSG
§ 5K1.1 or under the safety valve guideline. See USSG § 5C1.2. No
departure motion was filed on Rainey's behalf, and he did not qualify
for sentencing under the safety valve provision because he had six
criminal history points. In resentencing Rainey, the district court fol-
lowed the clear mandate of the court of appeals when it imposed the
mandatory minimum sentence.

Before he was resentenced, Rainey filed a number of pro se plead-
ings in which he alleged that the government had failed to prove that
his offense involved crack rather than some other form of cocaine
base, opposed the information filed by the government under 21
_________________________________________________________________
*The district court determined that the guideline range was 121-151
months.

                    2
U.S.C. § 851 (1994), and asserted that his prior felony drug convic-
tion was invalid. The district court found that none of these issues had
merit and had been waived in any case because they were not raised
either in the district court or in the first appeal. See United States v.
Broughton-Jones, 71 F.3d 1143, 1149 n.4 (4th Cir. 1995); United
States v. Bell, 5 F.3d 64, 66-67 (4th Cir. 1993) (litigation of new
issues foreclosed on remand when appeals court's mandate limits
issues to be considered). We agree that the issues were not properly
before the sentencing court on remand.

We therefore affirm the sentence. 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

                     3
