UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4816

DAVID L. HODGE, JR.,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4854

ANTHONY D. BARBER,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Malcolm J. Howard, District Judge.

(CR-94-36-H)

Argued: March 1, 1999

Decided: April 2, 1999

Before WILKINS and TRAXLER, Circuit Judges, and

FABER, United States District Judge for the

Southern District of West Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: George Alan DuBois, Assistant Federal Public Defender,

Raleigh, North Carolina, for Appellant Barber; William Lee Davis,

III, Lumberton, North Carolina, for Appellant Hodge. John Samuel

Bowler, Assistant United States Attorney, Raleigh, North Carolina,

for Appellee. ON BRIEF: William Arthur Webb, Federal Public

Defender, Raleigh, North Carolina, for Appellant Barber. Janice

McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant

United States Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

David L. Hodge, Jr. and Anthony D. Barber appeal the sentences

imposed by the district court following a remand for resentencing

directed by our decision in United States v. Barber, 119 F.3d 276 (4th

Cir.) (en banc), cert. denied, 118 S. Ct. 457 (1997). Hodge asserts that

application of the decision of the Supreme Court in Koon v. United

States, 518 U.S. 81 (1996), violated his right to due process of law

because Koon approved the use of a departure based upon acquitted

conduct, creating an ex post facto problem, and that the evidence was

insufficient to support the determination of the district court that an

upward departure was warranted. Barber contends that the district

court exceeded the scope of the mandate by considering whether Barber's actions were premeditated and that the extent of the departure

was unreasonable. We affirm.

I.

Appellants pled guilty to second-degree murder. See 18 U.S.C.A.

§ 1111(a) (West Supp. 1998). In its initial sentencing, the district

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court departed upward with respect to both Appellants on the basis of

robbery and the use of a firearm, and with respect to Hodge on the

basis that the murder was premeditated. We affirmed the use of robbery as a basis for upward departure and affirmed by an equally

divided court the use of premeditation as a basis for an upward departure as to Hodge. See Barber, 119 F.3d at 286. We concluded that use

of a firearm, however, was included in the heartland of second-degree

murder offenses and therefore could not provide an appropriate

ground for departure unless the use of a firearm was extraordinary;

the lack of factual findings by the district court made it impossible to

determine whether the use of the firearm here was extraordinary. See

id. at 285. Although we acknowledged that some evidence indicated

that the district court would have imposed the same sentence in the

absence of reliance on the use of a firearm as a basis for departure,

that evidence was insufficient to permit us to conclude that the district

court necessarily would have done so. See id. at 286. Hence, we

remanded to the district court for further consideration of the use of

a firearm as a basis for departure and for resentencing. See id.

On remand, the district court imposed on each Appellant the same

210-month sentence of imprisonment that it had during their first sentencing. In its written sentencing order with respect to Hodge, the district court departed upward employing all three of the bases on which

it had relied in the earlier sentencing--robbery, premeditation, and

the use of a firearm. In addition, the district court indicated that it

would have departed the same amount irrespective of the use of a firearm as a basis for departure. Further, with respect to Barber, the district court departed upward on the basis of robbery and premeditation

but made clear that it would have departed the same amount without

premeditation.

II.

Having had the benefit of the extensive briefing and arguments of

counsel, and after careful consideration of the record and applicable

law, we conclude that none of the issues raised by Appellants constitutes reversible error. Consequently, we affirm Appellants' sentences.

AFFIRMED

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