                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4427


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHNNY LEE GORE, a/k/a Manager,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   C. Weston Houck, Senior District
Judge. (4:01-cr-00627-CWH-9)


Submitted:   April 16, 2010                   Decided:   May 7, 2010


Before KING, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Johnny Lee Gore, Appellant Pro Se. Marvin Jennings Caughman,
Assistant United States Attorney, Columbia, South Carolina; Rose
Mary   Sheppard  Parham,   Assistant   United  States  Attorney,
Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A   jury    convicted       Johnny         Lee   Gore    of     conspiracy     to

possess with intent to distribute cocaine, in violation of 21

U.S.C.   § 841(a)(1)          (2006).            The    district       court      initially

sentenced      Gore    to    360   months’        imprisonment         and       this   court

affirmed.       United States v. Gore, 102 F. App’x 292 (4th Cir.

2004) (Nos. 02-4566/4908 & 03-4084).                         Following its landmark

decision in United States v. Booker, 543 U.S. 220 (2005), the

Supreme Court vacated the judgment and remanded the case to this

court and we remanded to the district court for resentencing in

light of Booker.            United States v. Gore, 299 F. App’x 237 (4th

Cir.   2008)    (No.    02-4908),       as   amended         (Feb.    12,    2009).        The

district court resentenced Gore to 235 months in prison.                                  Gore

timely appealed.

            Gore has elected to appeal pro se and asserts numerous

claims on appeal.            First, he contends that the district court

erred by declining to conduct a de novo resentencing.                              However,

the purpose of our remand was to enable the district court to

resentence      Gore   in     light   of     Booker;         that    is,    to    treat    the

federal sentencing guidelines as advisory rather than mandatory.

Cf. United States v. Worley, 453 F.3d 706, 709 (6th Cir. 2006).

Thus, it was not our intention that the district court should

conduct a de novo resentencing.



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             Gore also challenges the drug quantity attributed to

him   for    sentencing          purposes,        disputes      his    criminal      history

category, objects to the district court’s refusal to give him a

reduction in offense level for acceptance of responsibility, and

claims    the      Government         withheld         exculpatory     evidence.       These

issues      were     or       could     have          been   raised    in     the    earlier

proceedings.         We therefore find that the claims are barred by

the law-of-the-case doctrine and that none of the exceptions to

this doctrine apply.                See United States v. Aramony, 166 F.3d

655, 661 (4th Cir. 1999) (discussing doctrine and exceptions

thereto); see also 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 mandate rule “forecloses relitigation

of issues expressly or impliedly decided by the district court

but foregone on appeal”).

             Finally, Gore maintains that the district court erred

by    failing      to     grant       him   a     downward      departure      under      U.S.

Sentencing      Guidelines          Manual      § 5K2.23       (2008),      which   was    not

available at the time of Gore’s first sentencing.                               Because we

find that the district court did not mistakenly believe that it

lacked the authority to depart, its decision not to depart is



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not reviewable.        United States v. Brewer, 520 F.3d 367, 371 (4th

Cir. 2008).

              Accordingly, we affirm the district court’s judgment.

We grant Gore’s motions to file a supplemental brief and to

withdraw his motion to hold his appeal in abeyance and deny as

moot    his   request    for   mandamus      relief   seeking    to   compel   the

district court to issue an amended criminal judgment to correct

a clerical error.         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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