                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4773


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

JOSEPH TROY MCCONNELL,

                  Defendant – Appellant,


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-15)


Submitted:    April 22, 2009                  Decided:   May 8, 2009


Before WILLIAMS, Chief Judge, DUNCAN, Circuit Judge, 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Affirmed by unpublished per curiam opinion.
James B. Craven III, Durham, North Carolina, for Appellant.
Beth Drake, Mark C. Moore, Jane Barrett Taylor, Assistant United
States Attorneys, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

              Joseph      Troy      McConnell            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         possession          with         intent      to

distribute and distribution of 500 grams of cocaine on September

20,   2001,    in     violation        of    21       U.S.C.         §    841(a)(1),           and    was

sentenced      to     330      months       in       prison.              McConnell           appealed,

challenging         his     convictions           and          sentence.              We      affirmed

McConnell’s        convictions        and    rejected            claims      relating           to    his

sentence, but because he was sentenced under the then-mandatory

Sentencing     Guidelines,           vacated         and       remanded      for      resentencing

consistent with 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).

              On    remand,      the      district         court          imposed     a       188-month

variant   sentence        on     McConnell        and       McConnell         timely          appealed.

Counsel for McConnell has filed a brief pursuant to Anders v.

California,        386    U.S.      738     (1967),            explaining        that         McConnell

contends that his 188-month variant sentence was “unreasonably

high.”    Counsel has also filed a motion for leave to withdraw as

counsel of record in this case.

              McConnell        has     filed         a     pro       se    supplemental          brief

asserting that the district court: (i) improperly calculated his

                                                 3
Guidelines range when it increased his offense level two levels,

pursuant    to     U.S.    Sentencing      Guidelines            Manual     §     2D1.1(b)(1)

(2003); and (ii) violated the Sixth Amendment and the Supreme

Court’s holding in Apprendi v. New Jersey, 530 U.S. 466, 490

(2000) (“Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt.”), when it refused to instruct the jury to

determine the amount of drugs that should be attributed to him,

as now required by United States v. Collins, 415 F.3d 304, 311-

15 (4th Cir. 2005) (holding that in order for a trial court to

determine which of the three graduated penalty subsections of 21

U.S.C. § 841(b) applies to defendants convicted of a § 846 drug

conspiracy,      the      jury    must    be        instructed        to    determine       the

threshold    quantity       of    drugs    attributable            to      each    conspiracy

defendant on trial).              The Government has declined to file a

responding    brief.        Finding       no       error,   we    affirm        the   district

court’s judgment.

            In     accordance      with        Anders,      we     have      reviewed       the

record in this case and have found no meritorious issues for

review.       First,        McConnell’s            arguments      pertaining          to    his

Guidelines range calculation and the district court’s failure to

instruct the jury regarding the amount of conspiracy drugs to be

attributed    to    him    were    either          litigated     by     McConnell      on   his

                                               4
first appeal and were rejected, or could have been litigated but

were not.     See, e.g., Davis, 270 F. App’x at 249-56 & n.16

(instructing the district court that “because we have found no

reversible    Collins    error,    the        statutory      penalty       scheme    of

§ 841(b)(1)(A), with its attendant statutory minima and maxima,

remains the proper framework, in which to consider Appellants’

new sentences”).    Accordingly, the mandate rule precludes their

present   consideration    by     this       court.         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.”).

            “[T]he 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

                                         5
       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).                     Because McConnell’s claims do not

fall within any of the above-mentioned exceptions, he may not

pursue these challenges on this appeal.

              We also reject McConnell’s suggestion that his variant

sentence      is    unreasonably        high.        After       Booker,    a    sentence     is

reviewed      for       reasonableness,         using       an    abuse     of    discretion

standard of review.                Gall v. United States, 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.              United States v. Evans, 526 F.3d 155, 161

(4th   Cir.    2008).              Assuming    the    district      court       committed     no

significant procedural error, this court must next consider the

substantive reasonableness of the sentence imposed, taking into

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

              While the court may presume that a sentence within the

Guidelines         range      is    reasonable,       it    may    not     presume    that    a

sentence outside the Guidelines range is unreasonable.                                     Gall,

128 S. Ct. at 597; 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-


                                                6
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, we

“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.

             We      find     the        district        court’s       188-month       variant

sentence    to     be      reasonable.           On    remand,     the      district        court

entertained counsel’s argument regarding the weight that should

be    afforded       the    § 3553(a)          factors,     heard       from    McConnell’s

mother,     allowed        McConnell       an        opportunity       to    allocute,       and

thoroughly     considered         the      §    3553(a)     factors         before    imposing

McConnell’s       sentence.          We     conclude       that    the      district        court

adequately     explained         its      rationale       for   imposing        the    variant

sentence and that the reasons relied upon by the district court

are    valid      considerations           under       § 3553(a)       and     justify        the

sentence imposed.            See United States v. Pauley, 511 F.3d 468,

473-76 (4th Cir. 2007).

            Having reviewed the record in this case and finding no

meritorious issues for review, we affirm the district court’s

judgment.      At this juncture, we also deny counsel’s motion for

                                                 7
leave to withdraw as counsel of record.                     Rather, this court

requires that counsel inform McConnell in writing of his right

to petition the Supreme Court of the United States for further

review.     If McConnell requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then

counsel     may   move    this    court       for   leave    to     withdraw     from

representation.       Counsel's motion must state that a copy thereof

was served on McConnell.         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




                                          8
