UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4769

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

DAVID KEITH MILES, 

 Defendant – Appellant, 

 

RANDY MARTIN; LUTHER BRYAN; ALISIA H. AKBAR; LACARIA BROWN; 

GEORGEAN MCCONNELL; GUSSIE D. NOLLKAMPER; FLORENCE 

NOLLKAMPER; CHRISTOPHER M. MORRIS; LAVACA COUNTY TEXAS; 

JOSEPH E. MCCONNELL; JOHN M. WARTHER; WELLS FARGO HOME 

MORTGAGE, INCORPORATED; CHERYL L. AMAKER; DONNA C. ADKINS; 

CHASE MANHATTAN MORTGAGE CORPORATION, 

 Parties-in-Interest. 

Appeal from the United States District Court for the District of 

South Carolina, at Columbia. Cameron McGowan Currie, District 

Judge. (3:02-cr-00548-CMC-33) 

Submitted: March 25, 2009 Decided: April 24, 2009 

Before WILLIAMS, Chief Judge, DUNCAN, Circuit Judge, and John 

Preston BAILEY, Chief United States District Judge for the 

Northern District of West Virginia, sitting by designation. 

Affirmed by unpublished per curiam opinion. 
C. Rauch Wise, Greenwood, South Carolina, for Appellant. W. 

Walter Wilkins, United States Attorney, Jane B. Taylor, 

Assistant United States Attorney, Columbia, South Carolina, for 

Appellee. 

Unpublished opinions are not binding precedent in this circuit. 

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PER CURIAM: 

 David Keith Miles was convicted by a jury of 

conspiracy to distribute five kilograms or more of cocaine and 

fifty grams or more of cocaine base, in violation of 21 U.S.C. 

§§ 841(a)(1), 846 (2006), and was sentenced to life in prison. 

Miles appealed, challenging his conviction and sentence. We 

affirmed Miles’ conviction and rejected claims relating to his 

sentence, but because he was sentenced under the then-mandatory 

Sentencing Guidelines, vacated and remanded for resentencing 

consistent with United States v. Booker, 543 U.S. 220 (2005). 

See United States v. Davis, 270 F. App’x 236 (4th Cir. March 17, 

2008) (unpublished). 

 On remand, the district court imposed a 360-month 

variant sentence and Miles timely appealed. Miles asserts only 

that the district court erred when it calculated his Guidelines 

range using factors not found by a jury beyond a reasonable 

doubt. Finding no error, we affirm the district court’s 

judgment. 

 After Booker, a sentence is reviewed for 

reasonableness, using an abuse of discretion standard of review. 

Gall v. United States, 128 S. Ct. 586, 597 (2007). The first 

step in this review requires the court to ensure that the 

district court committed no significant procedural error, such 

as improperly calculating the Guidelines range. United States 

3 
v. Evans, 526 F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct. 

476 (2008). Because the district court appropriately treated 

the resultant Guidelines range as merely advisory, and since 

Miles’ sentence was within the statutory maximum authorized by 

the jury’s verdict (i.e., life in prison, see 28 U.S.C. 

§ 841(b)(1)(A) (2006)), we find that the district court fully 

complied with the Sixth Amendment and judicial precedent. See

Booker, 543 U.S. at 232-44 (holding that judge found sentence 

enhancements mandatorily imposed under the Guidelines that 

result in a sentence greater than that authorized by the jury 

verdict or facts admitted by the defendant violate the Sixth 

Amendment’s guarantee of the right to trial by jury); see also

Rita v. United States, 127 S. Ct. 2456, 2465-66 (2007) 

(recognizing that its “Sixth Amendment cases do not 

automatically forbid a sentencing court to take account of 

factual matters not determined by a jury and to increase the 

sentence in consequence”); United States v. Brooks, 524 F.3d 

549, 561-62 (4th Cir.) (“[A] sentencing court is entitled to 

find individualized drug quantities by a preponderance of the 

evidence, as part of its calculation of an advisory Guidelines 

range, . . . so long as its resulting sentence is within the 

relevant statutory range.”), cert. denied, Witherspoon v. United 

States, 129 S. Ct. 519 (2008). 

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 Moreover, to the extent that Miles attempts to 

challenge the substance of the district court’s Guidelines range 

calculation, these arguments are foreclosed by the mandate rule 

as they were previously raised by Miles or could have been 

raised but were not. See Volvo Trademark Holding Aktiebolaget 

v. Clark Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007) (“[A] 

remand proceeding is not the occasion for raising new arguments 

or legal theories.”); United States v. Bell, 5 F.3d 64, 66 (4th 

Cir. 1993) (stating that 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.”). 

 “[T]he doctrine [of the law of the case] 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. Aramony, 166 F.3d 655, 661 (4th 

Cir. 1999) (internal citation and quotation marks omitted)). 

The law of the case must be applied: 

in all subsequent proceedings in the same case in the 

trial court or on a later appeal . . . unless: (1) a 

subsequent trial produces substantially different 

evidence, (2) controlling authority has since made a 

contrary decision of law applicable to the issue, or 

(3) the prior decision was clearly erroneous and would 

work manifest injustice. 

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Id. (internal citation and quotation marks omitted); see Doe v. 

Chao, 511 F.3d 461, 464-66 (4th Cir. 2007) (discussing mandate 

rule and its exceptions). Because Miles’ summary assertions do 

not fall within any of the above-mentioned exceptions, he may 

not challenge his Guidelines range calculation on this appeal. 

 Accordingly, this court must next consider the 

substantive reasonableness of the sentence imposed on remand, 

taking into account the totality of the circumstances. Evans, 

526 F.3d at 161-62. While the court may presume that a sentence 

within the Guidelines range is reasonable, it may not presume 

that a sentence outside the Guidelines range is unreasonable. 

Gall, 128 S. Ct. at 597; see United States v. Abu Ali, 528 F.3d 

210, 261 (4th Cir. 2008) (“[A] sentence that deviates from the 

Guidelines is reviewed under the same deferential abuse-ofdiscretion standard as a sentence imposed within the applicable 

guidelines range.”). Rather, in reviewing a sentence outside 

the Guidelines range, we “consider the extent of the deviation, 

but must give due deference to the district court's decision 

that the § 3553(a) factors, on a whole, justify the extent of 

the variance.” Gall, 128 S. Ct. at 597. Even if this court 

would have imposed a different sentence, this fact alone will 

not justify vacatur of the district court’s sentence. Id.

 On remand, the district court considered Miles’ 

Guidelines range, heard counsel’s argument regarding the weight 

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that should be afforded the § 3553(a) factors, allowed Miles an 

opportunity to allocute, and thoroughly considered the § 3553(a) 

factors before imposing Miles’ sentence. We find that the 

district court adequately explained its rationale for imposing 

the variant sentence, that the sentence was selected pursuant to 

a reasoned process in accordance with law, and that the reasons 

relied upon by the district court are plausible and justify the 

sentence imposed. Abu Ali, 528 F.3d at 260-61; United States v. 

Pauley, 511 F.3d 468, 473-76 (4th Cir. 2007). 

 Based on the foregoing, we affirm the district court’s 

judgment. 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