                                                    NOT PRECEDENTIAL


             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                       ____________

                            No. 14-2057
                           ____________


                 UNITED STATES OF AMERICA

                                 v.

                ALTON COLES, a/k/a Naseem Coles
                                            Appellant



           On Appeal from the United States District Court
               for the Eastern District of Pennsylvania
              (District Court No.: 2-05-cr-00440-001)
            District Judge: Honorable R. Barclay Surrick


             Submitted under Third Circuit LAR 34.1(a)
                        November 20, 2014


Before: MCKEE, Chief Judge, RENDELL and SLOVITER, Circuit Judges


                     (Filed: December 3, 2014)
                                      O P I N I O N*


RENDELL, Circuit Judge:

       Alton Coles (“Coles”) appeals the District Court’s sentencing order. For the

reasons set forth below, we will affirm.

                                   I. BACKGROUND

       Because we write primarily for the benefit of the parties, we recite only the facts

necessary to the disposition of this appeal. Coles was convicted of various crimes and

sentenced to life imprisonment, plus multiple concurrent sentences, plus consecutive

sentences totaling 55 years. In January 2014, this Court “affirm[ed] the judgments on all

contested counts” for Coles and his two codefendants. United States v. Coles (Coles I),

558 F. App’x 173, 176 (3d Cir. 2014). However, the Court included a footnote

explaining that, “[i]n accordance with United States v. Diaz [(Diaz I)], 592 F.3d 467 (3d

Cir. 2010), and without opposition, we will vacate Coles’s conviction on two counts.”

Coles I, 558 F. App’x at 176 n.1. Diaz I held that the Double Jeopardy clause of the Fifth

Amendment prohibits multiple 18 U.S.C. § 924(c) convictions that are based on the same

predicate offense, Diaz I, 592 F.3d at 475, and the parties agreed that this was the

situation for Coles: counts 70 and 72 were based on the same predicate offense as count

68. Therefore, the Court “remand[ed] Coles’s case to the District Court for the entry of

an amended judgment in accordance with this opinion.” Coles I, 558 F. App’x at 189.

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                             2
       Approximately two months passed between the time this Court remanded the case

and the time the District Court entered its amended judgment. During the interim, Coles

filed a lengthy motion to expand the record, arguing the District Court should resentence

Coles because of Alleyne v. United States, 133 S. Ct. 2151 (2013).1 In that motion, Coles

did not present—or even allude to—any evidence of postsentencing rehabilitation.2

       Thereafter, the District Court entered an amended judgment, which reinstated the

life sentence and multiple concurrent sentences, but vacated counts 70 and 72 and the

corresponding consecutive sentences totaling 55 years and instead imposed a 5-year

consecutive sentence on the remaining § 924(c) count. After the entry of the amended

judgment, Coles did not move for reconsideration based on his supposed postsentencing

rehabilitation, nor did he otherwise present such evidence to the District Court.

                                    II. DISCUSSION

       On appeal, Coles raises only a single issue: whether the District Court should have

held a hearing in which Coles could have presented evidence of postsentencing

rehabilitation before entry of the amended judgment. This Court has a “deferential

abuse-of-discretion standard for reviewing sentencing appeals,” United States v. Grimes,

739 F.3d 125, 131 (3d Cir. 2014), and exercises plenary review over issues of law,

Covington v. Cont’l Gen. Tire, Inc., 381 F.3d 216, 218 (3d Cir. 2004).

       Coles’ appeal fails because the District Court did not need to consider Coles’

unknown evidence of postsentencing rehabilitation. In Pepper v. United States, the

1
 This argument is not pressed on appeal.
2
 Although this motion is not included in the appendix, “parts of the record may be relied
on by the court . . . even though not included in the appendix.” Fed. R. App. P. 30(a)(2).
                                             3
Supreme Court held that “when a defendant’s sentence has been set aside on appeal, a

district court at resentencing may consider evidence of the defendant’s postsentencing

rehabilitation.” 131 S. Ct. 1229, 1236 (2011). However, the key word is “may.” Id. The

Court explicitly did not hold that district courts “must” consider such evidence. Id. at

1249 n.17. Specifically, the Court caveated that it did not “mean to preclude courts of

appeals from issuing limited remand orders, in appropriate cases, that may render

evidence of postsentencing rehabilitation irrelevant in light of the narrow purposes of the

remand proceeding.” Id.

       Conceding that Coles I was a limited remand order, Coles instead argues that we

should ignore this statement in Pepper as dicta. This argument is unconvincing. See,

e.g., United States v. Diaz (Diaz II), 639 F.3d 616, 623 n.3 (3d Cir. 2011) (“Importantly,

we note, as the Supreme Court did in Pepper, that to the extent that a court remands for a

limited resentencing proceeding, and not a de novo proceeding, limitations on the

consideration of post-sentencing rehabilitation may continue to be appropriate.”).

       Neither the District Court nor this Court knows what evidence Coles would use to

demonstrate his postsentencing rehabilitation. After the remand, Coles filed a motion

arguing that the District Court should resentence him for a reason unrelated to the present

appeal. Coles could have presented his postsentencing rehabilitation evidence therein.

He did not. Likewise, after the entry of the amended judgment, Coles could have moved

for reconsideration in light of his postsentencing rehabilitation. He did not. Accordingly,




                                             4
the District Court did not abuse its discretion when it resentenced Coles without

considering the postsentencing rehabilitation evidence that Coles never presented.3

                                   III. CONCLUSION

       For the reasons set forth above, the District Court’s order is affirmed.




3
  We do not consider new arguments raised in Coles’ Reply Brief. See United States v.
Cruz, 757 F.3d 372, 387-88 (3d Cir. 2014) (“[B]ecause Cruz raises this argument for the
first time in the Reply Brief, we will not consider it. Instead, we will deem it, like the
other arguments that were raised for the first time in the Reply Brief, to be waived.”).
                                             5
