436 F. App'x 269
4th Cir.2011Background
- Everhart was convicted in 2004 of conspiracy to possess with intent to distribute 50 grams or more of cocaine base and two counts of possession with intent to distribute 50 grams or more, with a total offense level leading to a 360-month sentence.
- On remand after Booker, the district court resentenced Everhart to 360 months, which this court initially affirmed, later vacated, and remanded for further consideration.
- Supreme Court vacated the sentence and remanded for consideration in light of Kimbrough; this court vacated again and remanded to the district court.
- On remand, Everhart raised new arguments: crack specificity, usability (how much quantity reflected materials needing separation), and rule-of-lenity; district court rejected but gave a 3-level downward variance to 235 months.
- Upon further remand, the district court again rejected the arguments, applied another downward variance, and sentenced Everhart to 188 months; Everhart appealed arguing usability, rule-of-lenity, and crack specificity were preserved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether waiver forecloses new arguments on appeal | Everhart | Government | Waived arguments; mandate rule bars reconsideration on appeal. |
| Whether usability, rule of lenity, and crack specificity can be raised on appeal after remand | Everhart | Government | Not permitted; waived under mandate rule. |
Key Cases Cited
- United States v. Bell, 5 F.3d 64 (4th Cir. 1993) (mandate rule; issues decided or foregone on appeal)
- Doe v. Chao, 511 F.3d 461 (4th Cir. 2007) (waiver of issues not raised on appeal)
- Omni Outdoor Adver., Inc. v. Columbia Outdoor Adver., Inc., 974 F.2d 502 (4th Cir. 1992) (procedural efficiency; present all arguments on first appeal)