UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4827

ALLEN JETT,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4828 ANTOINE DEPAUL MARSHALL, a/k/a

Chim Chim, a/k/a Antone Depaul

Marshall,

Defendant-Appellant. 

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

William M. Nickerson, Senior District Judge.

(CR-96-458-WMN)

Submitted: April 30, 2003

Decided: May 20, 2003

Before WIDENER, LUTTIG, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

Rehearing granted, July 31, 2003
COUNSEL

Anthony D. Martin, SOLOMON & MARTIN, Greenbelt, Maryland;

Thomas T. Ruffin, Jr., Washington, District of Columbia, for Appellants. Thomas M. DiBiagio, United States Attorney, Jamie M. Bennett, Assistant United States Attorney, Baltimore, Maryland, for

Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Allen Jett was convicted of conspiracy to murder and kidnap in aid

of racketeering, 18 U.S.C. § 1959(a)(5) (2000), conspiracy to retaliate

against federal witnesses, 18 U.S.C.A. §§ 371, 1513 (West 2000 &

Supp. 2002), and conspiracy to distribute a quantity of heroin and

cocaine, 21 U.S.C. § 846 (2000). Antoine DePaul Marshall was convicted of participation in the drug conspiracy. Initially, Jett received

a life sentence for the drug conspiracy, a five-year sentence for the

conspiracy to retaliate, and a ten-year sentence for the conspiracy to

murder and kidnap. Marshall received a sentence of 264 months. In

the first appeal, we held that the statutory maximum sentence for the

drug conspiracy for both Appellants was twenty years. Their sentences were vacated and their cases remanded for resentencing in

accordance with Apprendi v. New Jersey, 530 U.S. 466 (2000). Jett

and Marshall now appeal the sentences of 420 months and 235

months they received, respectively, on remand. After consideration of

the issues raised by Appellants, we affirm. 

In this appeal, relying on Apprendi and Ring v. Arizona, 536 U.S.

584 (2002) (applying Apprendi to capital sentencing), Appellants

principally challenge their sentences by contending that the statutory

maximum sentence for the drug conspiracy with which they were

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charged, a conspiracy involving "a detectable amount" of cocaine and

heroin, is established by the sentencing guidelines, rather than

§ 841(b), because 18 U.S.C. § 3553(b) incorporates the sentencing

guidelines by reference and mandates their use. They argue that the

statutory sentencing range for a conspiracy to distribute an unspecified quantity of heroin or cocaine is determined by the guideline

ranges possible for base offense level 12 under § 2D1.1(c)(14), i.e.,

10-37 months, and allege that any fact that would increase their sentence beyond that "statutory" range must be proved to a jury beyond

a reasonable doubt. 

When presented with this argument for the first time at the resentencing hearing, the district court correctly determined that it was precluded by the mandate rule, which "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." United

States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). In the first appeal, we

concluded that the statutory maximum sentence for the drug conspiracy for both Jett and Marshall was twenty years pursuant to

§ 841(b)(1)(C). A trial court may reopen an issue on remand only in

rare circumstances not present here. Bell, 5 F.3d at 67. Therefore, the

district court did not err in refusing to consider this claim. 

For the same reason, we find no merit in Appellants’ related claims

of error concerning the district court’s determination of aggravating

factors affecting their guideline ranges by a preponderance of the evidence. We also reject Jett’s claims that, in his case, the district court

should have grouped together under USSG § 3D1.2(b) the counts for

conspiracy to kidnap/murder and conspiracy to retaliate, and that his

sentences should have been made concurrent rather than consecutive.

Marshall contends that the district court erred by imposing a fiveyear term of supervised release when it resentenced him because no

more than a three-year term was authorized under 18 U.S.C.

§ 3559(a)(3) (2000). That section classifies as a Class C felony an

offense for which the statutory maximum sentence is 10-25 years. A

term of not more than three years supervised release is prescribed for

a Class C felony pursuant to 18 U.S.C. § 3583 (2000), "except as otherwise provided . . . ." 

UNITED STATES v. JETT 3
Because Marshall did not dispute the five-year supervised release

term at resentencing, the issue is reviewed for plain error. United

States v. Pratt, 239 F.3d 640, 646 (4th Cir. 2001). The district court

did not err because § 841(b)(1)(C) authorizes a supervised release

term of "at least three years," not a minimum term of three years, and

this court has held that the statutory cap in § 3583 "does not apply to

statutes, such as § 841(b)(1)(C), whose own mandatory minimum

periods of supervised release are the same as, or exceed, the maximum

periods provided by § 3583." Pratt, 239 F.3d at 647 (emphasis in

original). 

We therefore affirm the sentences imposed by the district court.

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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