UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 97-4816

DAVID L. HODGE, JR.,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 97-4854

ANTHONY D. BARBER,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-94-36-H)

Argued: March 1, 1999

Decided: April 2, 1999

Before WILKINS and TRAXLER, Circuit Judges, and
FABER, United States District Judge for the
Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: George Alan DuBois, Assistant Federal Public Defender,
Raleigh, North Carolina, for Appellant Barber; William Lee Davis,
III, Lumberton, North Carolina, for Appellant Hodge. John Samuel
Bowler, Assistant United States Attorney, Raleigh, North Carolina,
for Appellee. ON BRIEF: William Arthur Webb, Federal Public
Defender, Raleigh, North Carolina, for Appellant Barber. Janice
McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

David L. Hodge, Jr. and Anthony D. Barber appeal the sentences
imposed by the district court following a remand for resentencing
directed by our decision in United States v. Barber, 119 F.3d 276 (4th
Cir.) (en banc), cert. denied, 118 S. Ct. 457 (1997). Hodge asserts that
application of the decision of the Supreme Court in Koon v. United
States, 518 U.S. 81 (1996), violated his right to due process of law
because Koon approved the use of a departure based upon acquitted
conduct, creating an ex post facto problem, and that the evidence was
insufficient to support the determination of the district court that an
upward departure was warranted. Barber contends that the district
court exceeded the scope of the mandate by considering whether Bar-
ber's actions were premeditated and that the extent of the departure
was unreasonable. We affirm.

I.

Appellants pled guilty to second-degree murder. See 18 U.S.C.A.
§ 1111(a) (West Supp. 1998). In its initial sentencing, the district

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court departed upward with respect to both Appellants on the basis of
robbery and the use of a firearm, and with respect to Hodge on the
basis that the murder was premeditated. We affirmed the use of rob-
bery as a basis for upward departure and affirmed by an equally
divided court the use of premeditation as a basis for an upward depar-
ture as to Hodge. See Barber, 119 F.3d at 286. We concluded that use
of a firearm, however, was included in the heartland of second-degree
murder offenses and therefore could not provide an appropriate
ground for departure unless the use of a firearm was extraordinary;
the lack of factual findings by the district court made it impossible to
determine whether the use of the firearm here was extraordinary. See
id. at 285. Although we acknowledged that some evidence indicated
that the district court would have imposed the same sentence in the
absence of reliance on the use of a firearm as a basis for departure,
that evidence was insufficient to permit us to conclude that the district
court necessarily would have done so. See id. at 286. Hence, we
remanded to the district court for further consideration of the use of
a firearm as a basis for departure and for resentencing. See id.

On remand, the district court imposed on each Appellant the same
210-month sentence of imprisonment that it had during their first sen-
tencing. In its written sentencing order with respect to Hodge, the dis-
trict court departed upward employing all three of the bases on which
it had relied in the earlier sentencing--robbery, premeditation, and
the use of a firearm. In addition, the district court indicated that it
would have departed the same amount irrespective of the use of a fire-
arm as a basis for departure. Further, with respect to Barber, the dis-
trict court departed upward on the basis of robbery and premeditation
but made clear that it would have departed the same amount without
premeditation.

II.

Having had the benefit of the extensive briefing and arguments of
counsel, and after careful consideration of the record and applicable
law, we conclude that none of the issues raised by Appellants consti-
tutes reversible error. Consequently, we affirm Appellants' sentences.

AFFIRMED

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