UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4594

SWANSON DALTON,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Danville.

Jackson L. Kiser, Senior District Judge.

(CR-93-171)

Submitted: March 9, 1999

Decided: April 22, 1999

Before WILKINS and MOTZ, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Kevin M. Schad, SCHAD, BUDA, COOK, L.L.C., Cincinnati, Ohio,

for Appellant. Robert P. Crouch, Jr., United States Attorney, Joseph

W.H. Mott, Assistant United States Attorney, Roanoke, Virginia, for

Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Swanson Dalton was convicted in 1994 of conspiracy to distribute

and to possess cocaine with intent to distribute, 21 U.S.C. § 846

(1994), and attempting to possess cocaine with intent to distribute, 21

U.S.C. § 841(a) (1994). He appealed his conviction on the ground of

prosecutorial misconduct and also contested his career offender sentence of 360 months imprisonment. We affirmed the conviction and

sentence. After two of his prior state convictions were overturned,

Dalton sought federal habeas relief and the district court ordered

resentencing. At the resentencing hearing, Dalton challenged for the

first time his four-level adjustment for having a leadership role in the

conspiracy, see U.S. Sentencing Guidelines Manual § 3B1.1(a)

(1997), arguing that an intervening change in the law made the adjustment unwarranted. The district court again found that the adjustment

applied and imposed a sentence of 200 months imprisonment. Dalton

appeals this sentence. We affirm.

Because Dalton failed to contest the role adjustment at the first sentencing or in his first appeal, he has waived the issue unless it comes

within one of the exceptions to the mandate rule. See United States

v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). The rule forecloses litigation

of issues not raised in the district court or foregone on appeal unless

the "controlling legal authority has changed dramatically," significant

new evidence has come to light, or a blatant error in the prior decision

will result in serious injustice if not corrected. Id. at 67 (quoting

United States v. Bell, 988 F.2d 247, 251 (1st Cir. 1993)).

Dalton argues that our decision in United States v. Capers, 61 F.3d

1100 (4th Cir. 1995), changed the controlling authority within this circuit by finding that the defendant must have controlled other participants, not merely drugs or money, for an adjustment under § 3B1.1

to apply. However, Capers simply interpreted the 1993 amendment

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to the commentary to § 3B.1, finding that the amendment changed the

standard for applying the adjustment and "had the effect of changing

the law in this circuit." Capers, 61 F.3d at 1110. The amendment was

in effect when Dalton was first sentenced. No change in the law

occurred between his first and second sentencing. Consequently, we

find that the issue was waived when Dalton failed to raise it in his

first sentencing and appeal. It was not properly raised at the resentencing hearing and is not properly before us in this appeal.

Therefore, we affirm the sentence. 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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