UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 02-4928

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ROBERT JARED SMITH, a/k/a J Dog,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Charleston. Charles H. Haden II,

District Judge. (CR-99-198)

Submitted: May 26, 2004 Decided: June 8, 2004

Before WILKINSON, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Joan A. Mooney, STILLER & MOONEY, P.L.L.C., Morgantown, West

Virginia, for Appellant. Kasey Warner, United States Attorney,

John J. Frail, Assistant United States Attorney, Charleston, West

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

Vacated by Supreme Court, June 8, 2009
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PER CURIAM:

Robert Jared Smith appeals following a remand to the

district court for resentencing. For the reasons discussed below,

we decline to address the issue Smith raises on appeal and affirm.

Smith was convicted on one count of conspiracy to

distribute cocaine base and aiding and abetting possession with

intent to distribute cocaine base, for which he received concurrent

sentences of life in prison and twenty years in prison,

respectively. Smith appealed, contending that the district court

erred in allowing a defense witness to invoke the Fifth Amendment

privilege against self-incrimination and in increasing his offense

level by four levels under U.S. Sentencing Guidelines Manual

§ 3B1.1(a) (1999) for having an aggravating role as an organizer or

leader in the drug conspiracy. We affirmed Smith’s convictions,

but vacated his sentence and remanded for resentencing on the

ground that the district court abused its discretion by applying

the § 3B1.1(a) leadership role enhancement. United States v.

Sayles, 296 F.3d 219, 227 (4th Cir. 2002). 

Upon remand, the district court resentenced Smith without

the four-level enhancement of his offense level. Thus, Smith’s

offense level was reduced to 38 and his criminal history category

remained category IV, resulting in a guideline range of 324 to 405

months in prison. He received a 405-month sentence on the
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conspiracy count and a concurrent 240-month sentence on the aiding

and abetting count. 

Smith now appeals. His attorney has filed a brief in

accordance with Anders v. California, 386 U.S. 738 (1967), claiming

that the evidence was insufficient to support Smith’s conspiracy

conviction, but stating that there are no meritorious grounds for

appeal. Smith was advised of his right to file a pro se

supplemental brief, but he has not filed one. 

Under the mandate rule, consideration of the sufficiency

of the evidence is foreclosed because this issue was not raised in

the original appeal and is not reasonably within the scope of the

mandate. Cf. United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993)

(when mandate of appellate court is precise, district court may not

consider issues mandate has laid to rest). We accordingly decline

to address the issue because it is not properly before us.

We therefore affirm. Within the constraints of the

mandate rule, we have, as required by Anders, reviewed the record

and have found no meritorious issues for appeal. This court

requires that counsel inform her client, in writing, of his right

to petition the Supreme Court of the United States for further

review. If Smith requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel may

move in this court to withdraw from representation. We dispense

with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED