UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4746

LENZIE LEE MURRAY, JR., a/k/a

Pepsi,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge.

(CR-96-157)

Submitted: April 30, 2001

Decided: June 11, 2001

Before WIDENER, WILKINS, and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Mark J. Petrovich, MARTIN, ARIF, PETROVICH & WALSH,

Springfield, Virginia, for Appellant. Helen F. Fahey, United States

Attorney, Thomas M. Hollenhorst, Assistant United States Attorney,

Alexandria, Virginia, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Lenzie Lee Murray, Jr., pled guilty in 1996 to conspiracy to possess one kilogram or more of heroin with intent to distribute, 21

U.S.C. § 846 (1994). He was sentenced to a term of 292 months

imprisonment. Murray appealed the district court’s denial of his

motion to withdraw his guilty plea and also the three-level adjustment

he received under the sentencing guidelines for being a manager or

supervisor in the conspiracy. The government recommended resentencing because it appeared that the district court might have relied

on information protected under the cooperation provision in Murray’s

plea agreement in determining that the role adjustment was warranted.

U.S. Sentencing Guidelines Manual § 1B1.8 (1995). We affirmed the

conviction but remanded for resentencing with directions that the district court reconsider Murray’s role in the conspiracy.1 United States

v. Murray, No. 96-4864 (4th Cir. Feb. 23, 1998) (unpublished). 

Murray also characterized as an error the district court’s two-level

enhancement under USSG § 2D1.1(b)(1) for possession of a firearm

during the offense, but did not raise the enhancement as an issue or

make any argument concerning it. The opinion addressed the

enhancement in a footnote, finding that, because the district court had

based its determination on the Statement of Facts incorporated into

Murray’s plea agreement and reproduced in the presentence report

(information that was not protected), the ruling need not be reexamined.2

1Murray notes here that the opinion stated that he contested only the

role adjustment at sentencing. Although inaccurate, this statement did not

affect the outcome of the appeal. 

2

In the Statement of Facts, Murray agreed that the government could

prove that, in December 1995, he possessed a handgun that was used and

possessed in connection with the conspiracy. The gun was hidden in a

compartment in his car, and was discovered after his arrest in December

1995. The arrest occurred while the charged conspiracy was ongoing;

2 UNITED STATES v. MURRAY
On remand, the government withdrew its recommendation for a

role adjustment, and the district court eliminated it, imposing a sentence of 210 months imprisonment. Murray again contested the

weapon enhancement. The district court found that this court had

already ruled on the issue, and that the enhancement was warranted

based on the Statement of Facts attached to the plea agreement. No

appeal was filed from the resentencing, but two years later the district

court granted Murray relief on his motion under 28 U.S.C.A. § 2255

(West Supp. 2000), in which he alleged that his attorney had been

ineffective in failing to note an appeal. The district court vacated the

prior judgment and resentenced Murray at a hearing where he

appeared with new counsel and again raised the issue of the weapon

enhancement. The district court stated that it was satisfied that this

court had ruled on the issue, and that further litigation of it was foreclosed. The court reimposed the 210-month sentence. Murray appeals.

The government asserts that the waiver of appeal rights in Murray’s plea agreement bars this appeal. However, the government

failed to assert the waiver in Murray’s first appeal, and thus waived

the waiver. United States v. Metzger, 3 F.3d 756, 757 (4th Cir. 1993).

We need not determine whether the government may raise it to bar

a second appeal because the issue on which Murray seeks review was

not properly before the district court at the resentencing. 

A resentencing on remand is de novo unless it is specifically limited by the mandate of the court of appeals. United States v.

Broughton-Jones, 71 F.3d 1143, 1149 n.4 (4th Cir. 1995) (following

United States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993) (applying mandate

rule)). An issue that has been expressly or impliedly decided by the

appeals court may not be relitigated on remand unless (1) the controlCount One charged that the conspiracy continued from 1988 to April

1996. Evidence that the defendant possessed a weapon during the commission of the offense is sufficient to warrant an enhancement under

§ 2D1.1(b)(1). United States v. Apple, 962 F.2d 335, 338 (4th Cir. 1992).

Murray entered his guilty plea after acknowledging that the information

contained in the Statement of Facts was correct. The plea agreement precluded the use of any information Murray provided thereafter, pursuant

to the agreement, but did not preclude the district court from considering

information contained in the Statement of Facts to enhance Murray’s

sentence. 

UNITED STATES v. MURRAY 3
ling legal authority has changed dramatically, (2) significant new evidence not available earlier has been obtained, or (3) a blatant error in

the prior decision will result in serious injustice unless corrected. Bell,

5 F.3d at 67. The 1998 opinion of this court that remanded Murray’s

case for resentencing found (albeit in a footnote because the issue was

not directly presented) that the district court’s finding concerning the

weapon enhancement was based on the Statement of Facts attached

to the plea agreement and that, to the extent that the issue was before

the court, the district court’s decision need not be disturbed. The opinion specified that the case was being remanded for reconsideration of

Murray’s role in the conspiracy. This language limited the scope of

the resentencing to that issue. Murray was thus foreclosed from relitigating the weapon enhancement at the first resentencing. Bell, 5 F.3d

at 66. 

At the April 1998 resentencing, the district court afforded Murray

the relief he sought concerning his role in the conspiracy. When Murray raised the issue of the weapon enhancement, the district court

found that this court had already ruled on the issue. After the district

court granted relief on Murray’s § 2255 motion in August 2000, Murray was entitled only to re-entry of the judgment so that he could file

a timely appeal from the sentence imposed in April 1998.3See

United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993) (vacating judgment and remanding for entry of "new judgment from which an

appeal can be taken"). 

Having previously determined that the district court did not clearly

err in making the weapon adjustment, we 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

3Because Murray had convinced the district court to remove the role

adjustment, the only issue properly before the district court on remand,

there was nothing for him to appeal. 

4 UNITED STATES v. MURRAY