UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4399

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BRIAN DARNELL HENDERSON, a/k/a B,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:07-cr-00023-RLV-DCK-2)

Submitted: October 30, 2015 Decided: November 20, 2015

Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam 

opinion.

William D. Auman, AUMAN LAW OFFICES, Asheville, North Carolina, 

for Appellant. Amy Elizabeth Ray, Assistant United States 

Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

A jury convicted Brian Darnell Henderson of (1) conspiracy 

to possess with intent to distribute at least 50 grams of 

cocaine base and at least 5 kilograms of cocaine, in violation 

of 21 U.S.C. § 846 (2012) (Count 1); (2) possession with intent 

to distribute at least 50 grams of cocaine base, in violation of 

21 U.S.C. § 841(a) (2012) (Count 3); (3) using and carrying a 

firearm in furtherance of a drug trafficking crime, in violation 

of 18 U.S.C. § 924(c) (2012) (Count 4); and (4) possession of a 

firearm by a convicted felon, in violation of 18 U.S.C. 

§§ 922(g)(1), 924(e) (2006) (Count 5). The district court 

imposed life sentences on Count 1 and 3, a concurrent 120-month 

sentence on Count 5, and a consecutive mandatory minimum 

sentence of 60 months on Count 4. On appeal, we affirmed 

Henderson’s conviction and sentence. United States v. 

Henderson, 380 F. App’x 295, 296-97 (4th Cir. 2010) (No. 08-

5047).

Subsequent to Henderson’s first appeal, we decided United 

States v. Simmons, holding that a prior conviction qualifies as 

a felony for sentencing enhancement purposes only if the prior 

conviction actually exposed that defendant to a term of 

imprisonment exceeding one year. 649 F.3d 237, 241-45 (4th Cir. 

2011) (en banc). Henderson filed a 28 U.S.C. § 2255 (2012) 

motion, seeking relief pursuant to Simmons. The district court 
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granted Henderson relief under Simmons by vacating his 

conviction in Count 5 and ordering resentencing. At 

resentencing the district court imposed concurrent terms of 188 

months on Count 1 and 3, to be served consecutive to the 

mandatory minimum term of 60 months on Count 4.

On appeal, Henderson’s counsel has filed a brief pursuant 

to Anders v. California, 386 U.S. 738 (1967), asserting that 

there are no meritorious issue for appeal, but questioning 

whether (1) the district court erred in determining the drug 

weight attributable to Henderson at sentencing; (2) the district 

court erred in denying Henderson’s motion to suppress; (3) the 

question of drug weight for sentencing purposes needed to be 

submitted to a jury under Alleyne v. United States, 133 S. Ct. 

2151 (2013); and (4) Henderson’s sentence is substantively 

unreasonable in light of the sentences his coconspirators

received. Henderson has filed a pro se supplemental brief, 

raising several issues identified by counsel, as well as 

asserting that the district court’s instruction to the jury on 

Count 4 constructively amended the indictment. We affirm in 

part and dismiss in part.

“For sentencing purposes, the government must prove the 

drug quantity attributable to a particular defendant by a 

preponderance of the evidence.” United States v. Bell, 667 F.3d 

431, 441 (4th Cir. 2011). When determining drug quantity 
4

attributable to a defendant, “[w]here there is no drug seizure 

or the amount seized does not reflect the scale of the offense, 

the court shall approximate the quantity of the controlled 

substance.” U.S. Sentencing Guidelines Manual, § 2D1.1 cmt. n.5

(2013). While a district court may rely on witness testimony to 

approximate drug quantity, “when the approximation is based only 

upon uncertain witness estimates, district courts should 

sentence at the low end of the range to which the witness[] 

testified.” Bell, 667 F.3d at 441 (internal quotation marks 

omitted).

As Henderson did not object to the drug quantity 

determination at resentencing, we review his argument on appeal 

for plain error. United States v. Strieper, 666 F.3d 288, 292 

(4th Cir. 2012). To satisfy the plain error standard, Henderson 

must show (1) an error; (2) that is plain; (3) that affects 

substantial rights; and (4) that seriously affects the fairness, 

integrity or public reputation of judicial proceedings. United 

States v. Olano, 507 U.S. 725, 731-32, 735-36 (1993).

Under the applicable version of the U.S. Sentencing 

Guidelines Manual, a base offense level of 34 was appropriate if 

the combined marihuana equivalency of the drugs attributable to 

Henderson was “[a]t least 3,000 KG but less than 10,000 KG.” 

USSG § 2D1.1(c)(3) (drug quantity table). Even discounting 

testimony disputed by Henderson and relying on the drug 
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quantities stipulated to by the Government with respect to the 

execution of a search warrant on July 31, 2006, the record 

contains sufficient evidence to support the conclusion that 

Henderson possessed an amount of powder cocaine and cocaine base 

with a marihuana equivalence of at least 3000 KG. See § 2D1.1 

cmt. n.8. Accordingly, we conclude that Henderson has not shown

any error that affected his substantive rights. 

Henderson’s claim regarding his motion to suppress is 

foreclosed by the law of the case. “The law of the case 

doctrine 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. Lentz, 

524 F.3d 501, 528 (4th Cir. 2008) (internal quotation marks 

omitted). The doctrine applies to both subsequent proceedings 

in the trial court and on a later appeal. Id. We addressed and 

rejected Henderson’s challenge to the district court’s denial of 

his motion to suppress on his initial appeal, Henderson, 380 F. 

App’x at 296-97, and we are bound by that ruling.

Next, Henderson argues that the district court’s drug 

quantity determination at sentencing was invalid because it was 

not submitted to a jury pursuant to Alleyne v. United States, 

133 S. Ct. 2151 (2013). We reject this argument. The district 

court’s drug quantity determination merely controlled 

Henderson’s Sentencing Guidelines range, and did not alter the 
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statutory minimum sentenced he faced. See id. at 2163 

(acknowledging that Alleyne’s holding “does not mean that any 

fact that influences judicial discretion must be found by a 

jury”).

We review the substantive reasonableness of Henderson’s 

sentence for plain error. Olano, 507 U.S. at 731-32, 735-36. 

Substantive reasonableness is determined by considering the 

totality of the circumstances, and if the sentence imposed falls 

within or below the properly-calculated Guidelines range, we 

apply a presumption of reasonableness. United States v. Susi, 

674 F.3d 278, 289 (4th Cir. 2012). Henderson has not rebutted 

that presumption, and we conclude that the sentence imposed by 

the district court is substantively reasonable.

Turning to the final issue raised by Henderson, his 

challenge to a jury instruction, an issue not raised on an 

initial appeal is waived, Doe v. Chao, 511 F.3d 461, 465 (4th 

Cir. 2007), and not subject to review on a second appeal. Cf.

Omni Outdoor Advert., Inc. v. Columbia Outdoor Advert., Inc., 

974 F.2d 502, 505 (4th Cir. 1992). Accordingly, we dismiss 

Henderson’s appeal with respect to his claim that the district 

court’s instruction to the jury on Count 4 constructively 

amended his indictment.

In accordance with Anders, we have reviewed the entire 

record in this case and have found no meritorious issues for 
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appeal. We therefore affirm Henderson’s conviction and sentence

and dismiss his appeal with respect to his challenge regarding 

the district court’s jury instruction. This court requires that 

counsel inform Henderson, in writing, of the right to petition 

the Supreme Court of the United States for further review. If 

Henderson requests that a petition be filed, but counsel 

believes that such a petition would be frivolous, then counsel 

may move in this court for leave to withdraw from 

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

was served on Henderson.

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 IN PART;

DISMISSED IN PART