UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4013

WILBERT ANTHONY NEAL,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4014

RONALD CHRISTOPHER NEAL,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4095

FREDERICK ANTHONY CARGILL,

Defendant-Appellant. 

Appeals from the United States District Court

for the Middle District of North Carolina, at Greensboro.

James A. Beaty, Jr., District Judge.

(CR-94-300)

Submitted: February 13, 2003

Decided: May 27, 2003

Before WILKINS, Chief Judge, and WIDENER and

MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion. 

COUNSEL

Anne R. Littlejohn, Greensboro, North Carolina, for Appellant Wilbert Neal; John J. Korzen, ANDERSON, KORZEN & ASSOCIATES, P.C., Kernersville, North Carolina, for Appellant Cargill;

James B. Craven, III, Durham, North Carolina, for Appellant Ronald

Neal. Anna Mills Wagoner, United States Attorney, Clifton T. Barrett, Assistant United States Attorney/Chief, Criminal Division, L.

Patrick Auld, Assistant United States Attorney, Greensboro, North

Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Wilbert Anthony Neal (known as Anthony Neal), Ronald Neal, and

Frederick Cargill appeal from their twenty-year prison sentences for

conspiracy to distribute cocaine base. Their main argument is that the

district court on resentencing should have reassessed their base

offense levels because the drug quantity findings were based in part

on testimony from a witness who testified falsely on other matters.

Because the record contains other, untainted evidence sufficient to

support the drug quantity findings, we reject this argument. We also

reject as moot the defendants’ request to see (in the event of remand)

the presentence reports of two government witnesses who testified at

resentencing. Finally, we reject Ronald Neal’s appeal from the district

court’s failure to depart downward based on his rehabilitation efforts

after the original sentencing. We therefore affirm. 

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I.

In their last appeal we vacated the defendants’ sentences and

remanded for resentencing on three grounds. First, we concluded that

the district court had applied a weapon enhancement to Anthony

Neal’s sentence based solely on facts established by the testimony of

Lee Marvin Settle, who had testified falsely on other matters. We

instructed the court to reconsider the enhancement and determine

whether Settle’s testimony was sufficiently reliable to support this

enhancement. Second, we concluded that the district court had

applied a weapon enhancement to Cargill’s sentence based on a

clearly erroneous factual finding. We therefore instructed the district

court to resentence Cargill without the enhancement. Third, we held

that in light of Apprendi v. New Jersey, 530 U.S. 466 (2000); United

States v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc); and United

States v. Cotton, 261 F.3d 397 (4th Cir. 2001), rev’d 535 U.S. 625

(2002), the defendants could only be sentenced to a maximum of

twenty years. Our remand instructions said that they were to "be sentenced to a term of imprisonment not to exceed twenty years." United

States v. Cargill, 2001 WL 1019312, at *20 (4th Cir.). 

In this appeal the defendants point to another aspect of their sentences — drug quantity findings — that they claim was tainted by

Settle’s discredited testimony. Each was determined to have possessed quantities of cocaine base in excess of 1.5 kilograms, yielding

a base offense level of 38. See U.S. Sentencing Guidelines Manual

§ 2D1.1 (1995). They argue that without Settle’s testimony they cannot be tied to sufficient quantities of drugs to justify level 38. The

defendants argued at resentencing that drug quantity amounts had to

be recalculated without reference to Settle’s testimony. The district

court refused to consider this argument, saying that our remand

instructions required it to reconsider the weapon enhancements and to

sentence within the twenty-year maximum, but did not allow it to

reach any other issues.

Our mandate did not touch upon the question of drug quantities.

Under the "mandate rule," "a lower court generally is ‘bound to carry

the mandate of the upper court into execution and [may] not consider

the questions which the mandate laid at rest.’ . . . In addition, the rule

forecloses relitigation of issues decided by the district court but foreUNITED STATES v. NEAL 3
gone on appeal." United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993)

(alteration in original) (quoting Sprague v. Ticonic Nat’l Bank, 307

U.S. 161, 168 (1939)). "[W]here an issue was ripe for review at the

time of an initial appeal but was nonetheless foregone, the mandate

rule generally prohibits the district court from reopening the issue on

remand unless the mandate can reasonably be understood as permitting it to do so." United States v. Ben Zvi, 242 F.3d 89, 95 (2nd Cir.

2001) (citing Bell). 

In the last appeal the government challenged the district court’s

grant of a new trial. If the government had lost its appeal, the new

trial would have proceeded, and any objections the defendants had to

their original sentences would have been moot. However, once we

decided to reverse the order granting a new trial, we considered the

defendants’ cross-appeals. Anthony Neal, for example, successfully

cross-appealed his weapon enhancement on the basis of the unreliability of Settle’s testimony. That issue was available and ripe, and

we decided it. The defendants are now rechallenging their sentences

on the same ground, that is, on the basis of Settle’s discredited testimony. The effect of Settle’s testimony on the district court’s drug

quantity findings could have been raised in the last appeal because the

issue was just as available and ripe as was the issue of the testimony’s

effect on the weapon enhancement. Because the issue of any Settle

taint on the drug quantity calculation was ripe but not raised the last

time, it should be precluded by the mandate rule unless there are

extraordinary circumstances. See Bell, 5 F.3d at 67. 

No extraordinary circumstances are present in this case. There was

sufficient evidence beyond Settle’s testimony to connect each defendant to more than 1.5 kilograms of cocaine base. The defendants were

convicted of drug-distribution conspiracy; each "is accountable for all

quantities of contraband with which he was directly involved and . . .

all reasonably foreseeable quantities of contraband that were within

the scope of the criminal activity that he jointly undertook." U.S. Sentencing Guidelines Manual § 1B1.3 cmt. n.2 (1995). See also United

States v. Vinson, 886 F.2d 740, 742-43 (4th Cir. 1989). Testimony

from several witnesses other than the discredited Settle establishes

that the conspiracy handled well over 1.5 kilograms of cocaine base.

In the last appeal another conspirator who is not currently before us,

Christopher Neal, challenged the drug quantity attributed to him. We

4 UNITED STATES v. NEAL
concluded that just the drugs recovered during arrests of various conspirators added up to more than 1.5 kilograms and "were reasonably

foreseeable to him within the scope of the conspiracy." Cargill, 2001

WL 1019312, at *19 (quotation marks omitted). This conclusion is

equally applicable to Anthony Neal, Ronald Neal, and Cargill. Without considering Settle’s testimony, enough drugs are attributable to

each defendant through the conspiracy to justify a base offense level

of 38. There was therefore no reason for the district court to recalculate drug quantities, regardless of whether our mandate allowed it to

do so. In short, the district court did not err in refusing to revisit the

defendants’ base offense levels. 

II.

The defendants raise two other claims, neither of which has merit.

They argue that in the event we remand for resentencing, the district

court should be required to order the government to produce the presentence reports of two government witnesses at sentencing. Because

we will not be remanding, the request is moot. 

Finally, Ronald Neal objects to the district court’s denial of a

downward departure based on his rehabilitation between the original

sentencing and resentencing. A district court’s discretionary refusal to

depart downward is not appealable. United States v. Bayerle, 898 F.2d

28, 30-31 (4th Cir. 1990). Here, the district court was without authority to base a departure on events occurring after the original sentencing. See Bell, 5 F.3d at 67; United States v. Apple, 962 F.2d 335, 336-

37 (4th Cir. 1992). It appears, however, that the district court might

have believed that it had the discretion to consider a departure in these

circumstances. Ronald Neal seizes on this possible confusion and

couches his argument in terms of whether the district court had the

authority to depart downward. A defendant may appeal the question

of whether the district court has authority to depart. Bayerle, 898 F.2d

at 31; see also Apple, 962 F.2d at 336-37 (entertaining such an

appeal). Neal’s substantive argument, however, is without merit. Bell

and Apple make clear that rehabilitation following the original sentence is not a ground for downward departure at resentencing. (The

Sentencing Commission has recently codified this rule in the Guidelines. U.S. Sentencing Guidelines Manual § 5K2.19 (2002).) There

UNITED STATES v. NEAL 5
was therefore no error in the district court’s ultimate decision not to

depart. 

III.

The sentences imposed by the district court are affirmed. 

AFFIRMED

6 UNITED STATES v. NEAL