UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4707

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

CLEVO SHUFF, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Frank D. Whitney, 

Chief District Judge. (3:09-cr-00008-FDW-1) 

Submitted: April 29, 2013 Decided: July 18, 2013

Before MOTZ, KING, and DUNCAN, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Randolph Marshall Lee, Charlotte, North Carolina, for Appellant. 

Anne M. Tompkins, United States Attorney, Melissa L. Rikard, 

Assistant United States Attorney, Charlotte, North Carolina, for 

Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
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PER CURIAM: 

Clevo Shuff was convicted after a jury trial of one 

count of conspiracy to distribute and to possess with intent to 

distribute at least fifty grams of cocaine base and aiding and 

abetting, in violation of 18 U.S.C. § 2 (2006), 21 U.S.C.A. 

§ 841(b)(1)(A) (West 2006 & Supp. 2012), and 21 U.S.C. § 846 

(2006) (count one), one count of possession with intent to 

distribute at least five grams of cocaine base and aiding and 

abetting, in violation of 18 U.S.C. § 2 and 21 U.S.C.A. 

§ 841(a), (b)(1)(B) (count two), and one count of using and 

carrying a firearm during and in relation to a drug trafficking 

crime, in violation of 18 U.S.C. § 924(c) (2006) (count three). 

On remand following this court’s affirmance of Shuff’s 

convictions and sentence on count three and vacatur of Shuff’s 

sentences on counts one and two,* the district court imposed an 

upward variance from the Guidelines range of 130 to 162 months’ 

imprisonment and sentenced Shuff to concurrent terms of 240 

 * United States v. Shuff, 470 F. App’x 158, 162 (4th Cir. 

2012) (No. 11–4426) (holding that Shuff’s prior state 

convictions were not punishable by terms of imprisonment 

exceeding one year and thus were not proper predicates for 

purposes of 21 U.S.C.A. § 841(b)(1)(A) and the career offender 

Sentencing Guideline and vacating Shuff’s life sentence on count 

one and career-offender-based sentence of 360 months’ 

imprisonment on count two). 
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months’ imprisonment. On appeal, Shuff challenges these 

sentences. We affirm. 

We review the district court’s sentence, “whether 

inside, just outside, or significantly outside the Guidelines 

range,” under a “deferential abuse-of-discretion standard.” 

Gall v. United States, 552 U.S. 38, 41 (2007). This standard of 

review involves two steps; under the first, we examine the 

sentence for significant procedural errors, and under the 

second, we review the substance of the sentence. 

United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007) 

(examining Gall, 552 U.S. at 50-51). Significant procedural 

errors include “failing to calculate (or improperly calculating) 

the Guidelines range, treating the Guidelines as mandatory, 

failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, 

selecting a sentence based on clearly erroneous facts, or 

failing to adequately explain the chosen sentence — including an 

explanation for any deviation from the Guidelines range.” 

Gall, 552 U.S. at 51. If there are no significant procedural 

errors, we then consider the substantive reasonableness of the 

sentence, “tak[ing] into account the totality of the 

circumstances.” Id. 

When the district court imposes a variant sentence, we 

consider “whether the . . . court acted reasonably both with 

respect to its decision to impose such a sentence and with 
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respect to the extent of the divergence from the sentencing 

range.” United States v. Hernandez-Villanueva, 473 F.3d 118, 

123 (4th Cir. 2007). Such a sentence is unreasonable if the 

district court “relie[d] on improper factors in imposing a 

sentence outside the properly calculated advisory sentencing 

range.” Id. 

After review of the record and the parties’ briefs, we 

reject as without merit Shuff’s argument that the district 

court’s consideration on remand of the drug quantity involved in 

his offenses and his role with respect to his co-defendant—

matters on which the Government relied in part in arguing for an 

upward variance from the Guidelines range—violated the mandate 

rule. 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 

or otherwise waived, for example because they were not raised in 

the district court.” United States v. Bell, 5 F.3d 64, 66 

(4th Cir. 1993). Shuff and the Government, however, lacked the 

opportunity or incentive to raise these issues in his initial 

appeal or in a cross-appeal because the district court initially 

sentenced Shuff to the then-statutorily-required sentence of 

life imprisonment on count one, 21 U.S.C.A. § 841(b)(1)(A), and 

a career-offender-based-sentence on count two. Accordingly, the 

mandate rule did not bar the district court’s consideration of 
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these matters on remand. See United States v. Quintieri, 

306 F.3d 1217, 1229-30 (2d Cir. 2002) (“[I]f a sentencing 

determination had no practical effect on a . . . sentence at the 

original sentencing but becomes relevant only after appellate 

review, a [party] is free to challenge that sentencing 

determination on remand, and ultimately on reappeal, despite the 

failure to challenge that determination initially.”); cf. Omni 

Outdoor Adver., Inc. v. Columbia Outdoor Adver., Inc., 974 F.2d 

502, 505 (4th Cir. 1992) (“It is elementary that where an 

argument could have been raised on an initial appeal, it is 

inappropriate to consider that argument on a second appeal 

following remand.” (internal quotation marks omitted)). 

Shuff also challenges his sentences as otherwise 

procedurally unreasonable and as substantively unreasonable. 

We reject these contentions as well. Considered in their 

totality, Shuff’s arguments in support of his claim of 

procedural error and his second argument supporting his claim of 

substantive error amount to a claim that the 240-month sentences 

are unreasonable because the district court violated the mandate 

rule in considering the drug quantity involved in his offenses, 

his role relative to his co-defendant, and his criminal history 

as part of its analysis under 18 U.S.C. § 3553(a). However, the 

mandate rule did not prohibit the district court from 

considering these matters in arriving at a sentence that was 
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sufficient, but not greater than necessary, to comply with 

§ 3553(a)’s sentencing objectives, and Shuff does not identify 

any other rule of sentencing procedure prohibiting the district 

court from considering these issues on remand or suggest that 

the facts the court relied on in imposing the variant sentences 

were clearly or otherwise erroneous. 

Additionally, at sentencing on remand—after 

calculating Shuff’s Guidelines range, hearing his allocution, 

and hearing argument from counsel—the district court concluded 

that an upward variance under 18 U.S.C. § 3553(a) to concurrent 

terms of 240 months’ imprisonment was necessary to achieve the 

purposes of sentencing. In reaching this conclusion, the 

district court properly considered the nature and circumstances 

of Shuff’s offense conduct and the sentencing range established 

by the Guidelines, § 3553(a)(1), (4)(A), making note of Shuff’s 

expressed threat to shoot police officers, the drug amounts 

involved in his offenses, and Shuff’s role with respect to his 

co-defendant. The court also properly considered Shuff’s 

history and characteristics and the need for the sentence to 

deter Shuff and to protect the public, § 3553(a)(1), (2)(B)-(C), 

addressing on the record Shuff’s criminal history and 

rehabilitation efforts following initial sentencing. 

The district court’s consideration of the relevant 18 U.S.C. 

§ 3553(a) factors and articulation of its reasons for varying 
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from the Guidelines range support our decision to defer to its 

determination as to the extent of the variance. See United 

States v. Diosdado-Star, 630 F.3d 359, 366-67 (4th Cir.) 

(affirming substantive reasonableness of variance sentence six 

years greater than Guidelines range because sentence was based 

on the district court’s examination of the § 3553(a) factors),

cert. denied, 131 S. Ct. 2946 (2011); see also United States v. 

Angle, 598 F.3d 352, 359 (7th Cir. 2010) (“All that matters is 

that the sentence imposed be reasonable in relation to the 

‘package’ of reasons given by the court.”).

We therefore affirm the district court’s amended 

judgment. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional 

process. 

AFFIRMED