UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4505

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BENJAMIN CORNELIUS BLUE,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:15-cr-00223-WO-1)

Submitted: February 26, 2019 Decided: March 6, 2019

Before GREGORY, Chief Judge, and FLOYD and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Brian Michael Aus, Durham, North Carolina, for Appellant. Kyle David Pousson, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Benjamin Cornelius Blue pled guilty to armed bank robbery, in violation of

(a), (d) (2012), and brandishing a firearm during a crime of violence, in

violation of

(c)(1)(A)(ii) (2012). The district court initially sentenced

Blue to an aggregate sentence of 272 months’ imprisonment. On appeal, Blue argued

that his sentence was procedurally and substantively unreasonable. We vacated Blue’s

sentence and remanded for resentencing, concluding that the district court failed to

address Blue’s nonfrivolous arguments for a sentence below the Sentencing Guidelines

range. United States v. Blue,

(4th Cir. 2017).

On remand, the district court imposed an aggregate sentence of 228 months’

imprisonment. Blue has again appealed. On appeal, counsel has filed a brief pursuant to

Anders v. California,

(1967), conceding that there are no meritorious

grounds for appeal but questioning whether the district court erred in sentencing Blue as a

career offender and applying an enhancement under U.S. Sentencing Guidelines Manual

§ 2B3.1(b)(4)(B) (2015). Although notified of his right to do so, Blue has not filed a pro

se supplemental brief. We affirm the district court’s judgment.

As an initial matter, we note that our review is circumscribed by the mandate rule.

“The mandate rule is a specific application of the law of the case doctrine that prohibits a

lower court from reconsidering on remand issues laid to rest by a mandate of the higher

court.” United States v. Alston,

(4th Cir. 2013) (internal quotation

marks omitted). The mandate rule “forecloses relitigation of issues expressly or

impliedly decided by the appellate court,” as well as “issues decided by the district court

2 but foregone on appeal or otherwise waived.” United States v. Susi,

(4th Cir. 2012). The district court is bound to “implement both the letter and spirit of the

mandate, taking into account our opinion and the circumstances it embraces.” United

States v. Pileggi,

(4th Cir. 2013) (alterations and internal quotation

marks omitted). We review the district court’s interpretation of the appellate mandate de

novo.

While we would normally review the plea hearing to determine if the district court

complied with Fed. R. Crim. P. 11 and if Blue’s plea was knowing and voluntary, Blue

failed to challenge his plea in the last appeal. Thus, we vacated only his sentence. Blue,

. Similarly, Blue could have challenged his career offender designation in

the first appeal; indeed, we noted that Blue conceded that the district court correctly

calculated his Guidelines range.

at 518 n.1. Accordingly, our review of these issues

is foreclosed by the mandate rule.

We further conclude that any error in applying the USSG § 2B3.1(b)(4)(B)

enhancement is harmless. * See Fed. R. Crim. P. 52(a) (“Any error . . . that does not affect

substantial rights must be disregarded.”). “A sentencing error is harmless if the resulting

sentence was not longer than that to which the defendant would otherwise be subject.”

United States v. Hargrove,

(4th Cir. 2012) (brackets and internal

quotation marks omitted). Blue’s Guidelines range was calculated under the career

* Our review of this issue is not foreclosed by the mandate rule because the district court did not apply this enhancement at the initial sentencing hearing.

3 offender Guidelines, and the USSG § 2B3.1(b)(4)(B) enhancement did not increase his

offense level. See United States v. Dowell,

(4th Cir. 2014)

(concluding Guidelines error was harmless because it did not increase defendant’s

Guidelines range). Moreover, the district court used the career offender Guidelines as the

starting point in calculating its downward departure and variance. Therefore, we

conclude that any error in applying the enhancement was harmless.

In accordance with Anders, we have reviewed the entire record in this case and

have found no meritorious issues for review. We therefore affirm the district court’s

judgment. This court requires that counsel inform Blue, in writing, of the right to petition

the Supreme Court of the United States for further review. If Blue requests that a petition

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

move in this court for leave to withdraw from representation. Counsel’s motion must

state that a copy thereof was served on Blue.

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED

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