United States v. Rainey
Appeal Court of Appeals for the Fourth Circuit, Case No. 97-4617

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 97-4124 QUINTON D. RAINEY, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Rebecca B. Smith, District Judge. (CR-94-69) Submitted: February 24, 1998 Decided: April 14, 1998 Before MURNAGHAN, WILKINS, and LUTTIG, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL Jon M. Babineau, Norfolk, Virginia, for Appellant. Helen F. Fahey, United States Attorney, Fernando Groene, Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
OPINION PER CURIAM: Quinton D. Rainey appeals the statutorily required 240-month sen- tence imposed by the district court on remand at the direction of this court. We affirm the sentence. Rainey was convicted of conspiracy to distribute crack cocaine and possession of crack cocaine with intent to distribute, see 21 U.S.C. ¤¤ 841, 846 (1994). At his original sentencing hearing, he did not dis- pute that he had a prior felony drug conviction or that the instant offense involved more than fifty grams of crack. Although Rainey was subject to a mandatory sentence of at least 240 months, the dis- trict court imposed a sentence of 135 months.* The government appealed the sentence. We vacated the sentence, finding that it was "imposed in clear violation of a mandate of Congress" and remanded for resentencing. In this appeal, Rainey argues that the original sentence was justi- fied as a departure below the statutory minimum for substantial assis- tance, see U.S. Sentencing Guidelines Manual¤ 5K1.1, p.s. (1994), or as a departure under USSG ¤ 5K2.0, p.s., due to his poor health. He contends that the same sentence should have been reimposed on remand. However, the district court may depart below a mandatory minimum sentence only on a government motion pursuant to USSG ¤ 5K1.1 or under the safety valve guideline. See USSG ¤ 5C1.2. No departure motion was filed on Rainey's behalf, and he did not qualify for sentencing under the safety valve provision because he had six criminal history points. In resentencing Rainey, the district court fol- lowed the clear mandate of the court of appeals when it imposed the mandatory minimum sentence. Before he was resentenced, Rainey filed a number of pro se plead- ings in which he alleged that the government had failed to prove that his offense involved crack rather than some other form of cocaine base, opposed the information filed by the government under 21
*The district court determined that the guideline range was 121-151 months. [End Page 2] U.S.C. ¤ 851 (1994), and asserted that his prior felony drug convic- tion was invalid. The district court found that none of these issues had merit and had been waived in any case because they were not raised either in the district court or in the first appeal. See United States v. Broughton-Jones, 71 F.3d 1143, 1149 n.4 (4th Cir. 1995); United States v. Bell, 5 F.3d 64, 66-67 (4th Cir. 1993) (litigation of new issues foreclosed on remand when appeals court's mandate limits issues to be considered). We agree that the issues were not properly before the sentencing court on remand. We therefore 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 [End Page 3]

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