United States of America v. Lance Whitaker

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6796
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LANCE WHITAKER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. James C. Dever III, District Judge. (4:09-cr-00091-D-1)
Submitted: January 20, 2023 Decided: February 10, 2023
Before AGEE, RICHARDSON, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: G. Alan DuBois, Federal Public Defender, Eric Joseph Brignac, Chief
Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon,
Assistant United States Attorney, Karen K. Haughton, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Lance Whitaker appeals the district court’s order granting in part his motion for
relief under Section 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194.
Finding no reversible error, we affirm.
Whitaker first contends that the district court did not correctly apply our mandate in
ruling on his motion. See United States v. Whitaker, No. 21-6448, 2022 WL 1830701 (4th
Cir. June 3, 2022) (argued but unpublished). “We review de novo the district court’s
interpretation of the mandate.” United States v. Pileggi, 703 F.3d 675, 679 (4th Cir. 2013)
(internal quotation marks omitted). “The mandate rule governs what issues the lower court
is permitted to consider on remand—it is bound to carry out the mandate of the higher
court, but may not reconsider issues the mandate laid to rest.” United States v. Susi, 674
F.3d 278, 283 (4th Cir. 2012). “[T]o the extent that the mandate of the appellate court
instructs or permits reconsideration of sentencing issues on remand, the district court may
consider the issue de novo, entertaining relevant evidence on that issue that it could have
heard at the first hearing.” Id. “But the mandate rule forecloses litigation of issues
foregone on appeal or otherwise waived, for example because they were not raised in the
district court.” Pileggi, 703 F.3d at 679 (cleaned up).
The district court correctly interpreted our mandate. The central issue for
Whitaker’s judicial vindictiveness argument in the prior appeal was the increase in the
supervised release term from 8 to 10 years. The concluding sentence of the operative
paragraph in our prior opinion could not have been clearer: “we vacate and remand to the
district court for resentencing to either provide an explanation or impose the same eight-

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year term of supervised release.” Whitaker, 2022 WL 1830701, at *2. The district court
did exactly what we asked it to do: it imposed the same eight-year term of supervised
release that it had previously. While the district court did not conduct any further
proceedings, we do not believe they were necessary in this case. See United States v.
Collington, 995 F.3d 347, 358 (4th Cir. 2021) (recognizing a defendant who files a Section
404 motion is not entitled to a plenary resentencing hearing).
Whitaker also argues that his sentence is substantively unreasonable. We review
the sentence imposed for procedural and substantive reasonableness. Id. at 358-59; see
also United States v. Swain, 49 F.4th 398, 399, 402 (4th Cir. 2022). “Substantive-
reasonableness review requires us to consider the totality of the circumstances to determine
whether the sentencing court abused its discretion in concluding that the sentence it chose
satisfied the standards set forth in [18 U.S.C.] § 3553(a).” Swain, 49 F.4th at 402 (internal
quotation marks omitted).
Whitaker relies on Swain to support his argument that his sentence is substantively
unreasonable. But, importantly, we were reviewing a variant sentence in Swain and, as we
explained, “we must more carefully scrutinize the reasoning offered by the district court in
support of the sentence.” Id. at 403 (cleaned up). By contrast, Whitaker’s sentence is
below his Sentencing Guidelines range, and we apply “a presumption of reasonableness to
a sentence within or below a properly calculated [G]uidelines range.” United States v.
Vinson, 852 F.3d 333, 357 (4th Cir. 2017) (internal quotation marks omitted). This
“presumption can only be rebutted by showing that the sentence is unreasonable when
measured against the 18 U.S.C. § 3553(a) factors.” Id. at 357-58 (internal quotation marks

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omitted). We conclude that Whitaker cannot rebut the presumption in this case. See Swain,
49 F.4th at 403 (“[G]enerally, a defendant’s disagreement with how a district court
balances the § 3553(a) factors is insufficient to overcome the district court’s discretion.”).
Therefore, we affirm the district court’s order. 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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