United States v. Rice

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-4077

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TOMMY RICE,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Margaret B. Seymour, District Judge. (CR-01-887)

Submitted: August 13, 2004 Decided: September 9, 2004

Before WILKINS, Chief Judge, TRAXLER, Circuit Judge, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Rodney W. Richey, RICHEY & RICHEY, P.A., Greenville, South Carolina, for Appellant. Elizabeth Jean Howard, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Tommy Rice appeals following a remand to the district

court for resentencing. Because the district court complied with

our mandate and we find no reversible error, we affirm.

Rice was convicted of one count of aiding and abetting

the possession with intent to distribute and the distribution of

fifty grams or more of crack cocaine in violation of 18 U.S.C. § 2

(2000) and 21 U.S.C. § 841(a)(1) (2000), for which he received a

sentence of 293 months in prison. Rice appealed, contending that

the evidence was insufficient to sustain his conviction and that

his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000).

The Government cross-appealed, arguing that the district court

erred in declining to impose the statutorily mandated sentence of

life imprisonment. We affirmed Rice’s conviction, but vacated his

sentence and remanded for resentencing to the required term of life

imprisonment. United States v. Rice, No. 02-4673, 2003 WL 22383727

(4th Cir. Oct. 20, 2003) (unpublished).

Upon remand, the district court resentenced Rice to life

imprisonment. Rice now appeals. His attorney has filed a brief in

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

that the sentence of life imprisonment is constitutionally

disproportionate to Rice’s offense conduct, but stating that there

are no meritorious grounds for appeal. Rice was advised of his

- 2 - right to file a pro se supplemental brief, but declined to file

one.

Under the mandate rule, consideration of the

proportionality of Rice’s sentence is foreclosed because this issue

was decided in the original appeal. United States v. Bell, 5 F.3d

64, 66 (4th Cir. 1993). 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 his client, in writing, of his right

to petition the Supreme Court of the United States for further

review. If Rice 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

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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