UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                               No. 08-4770


UNITED STATES OF AMERICA,

                   Plaintiff – Appellee,

             v.

JOHNNY WILLIAM COOPER, JR., a/k/a Buck,

                   Defendant – Appellant,

             and

RANDY MARTIN; LUTHER BRYAN; ALISIA H. AKBAR; LACARIA BROWN;
GEORGEAN   MCCONNELL;   GUSSIE   D.   NOLLKAMPER;  FLORENCE
NOLLKAMPER; CHRISTOPHER M. MORRIS; LAVACA COUNTY TEXAS;
JOSEPH E. MCCONNELL; JOHN M. WARTHER; WELLS FARGO HOME
MORTGAGE, INCORPORATED; CHERYL L. AMAKER; DONNA C. ADKINS;
CHASE MANHATTAN MORTGAGE CORPORATION,

                   Parties-in-Interest.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.   Cameron McGowan Currie, District
Judge. (3:02-cr-00548-CMC-37)


Submitted:    September 14, 2009            Decided:   November 13, 2009


Before NIEMEYER and DUNCAN, Circuit Judges, and John Preston
BAILEY, Chief United States District Judge for the Northern
District of West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.
S. Harrison Saunders, VI, REEVES AND SAUNDERS, LLC, Columbia,
South Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, Jane B. Taylor, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              Johnny William Cooper, Jr., was convicted by a jury of

conspiracy to distribute five kilograms or more of cocaine and

fifty grams or more of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1), 846 (2006), and was sentenced to 420 months in

prison.         Cooper    appealed,      challenging      his    conviction      and

sentence.       We affirmed Cooper’s conviction and rejected claims

relating to his Guidelines range calculation, but because he was

sentenced       under     the     then-mandatory      Sentencing      Guidelines,

vacated and remanded for resentencing under United States v.

Booker, 

(2005).            See United States v. Davis, 270 F.

App’x 236 (4th Cir. March 17, 2008) (unpublished) (“Davis I”).

              On   remand,      the   district    court   imposed     a    300-month

variant sentence and Cooper timely appealed.                       Cooper asserts

that his variant sentence should be vacated because he argues

that enhancing his sentence based on his allegedly legal firearm

possession violated his Second Amendment right to bear arms, as

recently enunciated in District of Columbia v. Heller, 128 S.

Ct.    2783   (2008).        Cooper    asserts    that    Heller     “dramatically

altered the jurisprudence related to an individual’s right to

bear    arms”      and,   accordingly,        a   challenge     to   the    firearm

enhancement is not foreclosed by the mandate rule.                    Cooper also

asserts that his variant sentence is unreasonable because it is

greater than necessary to comply with the 18 U.S.C. § 3553(a)

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(2006)    factors.           Finding       no    error,       we       affirm    the        district

court’s judgment.

               We     find       that     any        arguments         pertaining           to    the

calculation of Cooper’s Guidelines range are barred from this

court’s    consideration           under        the    mandate         rule;    Cooper        either

previously raised his objections at his original sentencing and

on his first appeal, or could have raised them but did not.                                       See

Volvo     Trademark         Holding       Aktiebolaget          v.       Clark        Mach.      Co.,

, 481 (4th Cir. 2007) (“[A] remand proceeding is not

the occasion for raising new arguments or legal theories.”);

United States v. Bell, 

, 66 (4th Cir. 1993) (stating

that     the    mandate          rule     “forecloses         relitigation             of     issues

expressly or impliedly decided by the appellate court,” as well

as   “issues         decided      by    the     district      court       but     foregone         on

appeal.”).

               Moreover,         “the   doctrine        [of     the      law    of     the       case]

posits    that       when    a    court    decides       upon      a    rule     of    law,      that

decision should continue to govern the same issues in subsequent

stages in the same case.”                     United States v. Aramony, 

, 661 (4th Cir. 1999) (internal citation and quotation marks

omitted)).          The law of the case must be applied:

        in all subsequent proceedings in the same case in the
        trial court or on a later appeal . . . unless: (1) a
        subsequent  trial  produces   substantially different
        evidence, (2) controlling authority has since made a
        contrary decision of law applicable to the issue, or

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     (3) the prior decision was clearly erroneous and would
     work manifest injustice.

quotation marks omitted); see Doe v.

Chao, 

, 464-66 (4th Cir. 2007) (discussing mandate

rule and its exceptions).

           This   court’s   mandate       in   Davis   I    rejected    Cooper’s

objections to his Guidelines range calculation and only directed

the district court to re-sentence Cooper under a non-mandatory

Guidelines regime.     See Davis, 270 F. App’x at 248, 256 & n.16.

Because Cooper raises no claims that fall within any of the

exceptions to the law of the case doctrine, his challenges to

his Guidelines range are foreclosed by the mandate rule.

           Cooper’s assertion that the legal landscape of Second

Amendment rights was significantly altered by Heller, thereby

excepting his Guidelines range challenge from the mandate rule,

is meritless.     Admittedly, Heller held that the Second Amendment

secures an individual's right to keep handguns in the home for

self-protection.     

.                  Heller also

emphasized, however, that the opinion should not “cast doubt on

longstanding    prohibitions   on     the      possession     of   firearms   by

felons and the mentally ill, or laws forbidding the carrying of

firearms   in   sensitive   places    such     as   schools    and    government

buildings, or laws imposing conditions and qualifications on the

commercial sale of arms.”      

the Supreme


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Court explicitly stated that it identified “these presumptively

lawful regulatory measures only as examples” and that its “list

[did] not purport to be exhaustive,” 

Heller

had   no   effect      on     the     Guidelines’         directive    to     enhance      a

Guidelines range if a weapon was present during the commission

of the crime.         See U.S. Guidelines Manual § 2D1.1(b)(1) & cmt.

n.3 (2008).      Because Heller is not “controlling authority [that]

has since made a contrary decision of law applicable to the

issue,” Cooper’s objection to his weapons enhancement is not

excepted from the mandate rule.

           We     affirm       the    district        court’s      300-month       variant

sentence imposed on remand.                After Booker, this court reviews a

district court’s sentence on appeal for reasonableness, using an

abuse of discretion standard of review.                      Gall v. United States,

, __, 

, 597 (2007).                        The first step in

this review requires the court to ensure that the district court

committed no significant procedural error, such as improperly

calculating     the     Guidelines         range.         United    States    v.    Evans,

,       161    (4th    Cir.),       cert.   denied,     129    S.    Ct.   476

(2008).         The     court       must    next      consider       the     substantive

reasonableness of the sentence imposed on remand, taking into

account the totality of the circumstances.                    

      the    Court    presumes       that    a    sentence       within   a

properly calculated Guidelines range is reasonable, see United

                                              6
States v. Allen, 

, 193 (4th Cir. 2007), it may not

presume    that    a        sentence     outside      the   Guidelines      range   is

unreasonable.      See United States v. Abu Ali, 

, 261

(4th Cir. 2008) (“[A] sentence that deviates from the Guidelines

is    reviewed    under       the    same    deferential       abuse-of-discretion

standard as a sentence imposed within the applicable guidelines

range.”), cert. denied, 

(2009).                          Rather, in

reviewing a sentence outside the Guidelines range, the court

must “consider the extent of the deviation, but must give due

deference to the district court's decision that the § 3553(a)

factors, on a whole, justify the extent of the variance.”                       

.              Even if this court would have imposed a

different sentence, this fact alone will not justify vacatur of

the district court’s sentence.              

sentence is reasonable.                       On

remand, the district court heard counsel’s argument regarding

the   weight     that       should     be   afforded     the   § 3553(a)     factors,

allowed   Cooper       an    opportunity         to   allocute,   allowed    Cooper’s

stepmother to speak on his behalf, and thoroughly considered the

§ 3553(a) factors before imposing Cooper’s sentence.                         We find

that the district court adequately explained its rationale for

imposing the variant sentence, that the sentence was “selected

pursuant to a reasoned process in accordance with law,” and that

the reasons relied upon by the district court are plausible and

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justify    the    sentence       imposed.       See     United    States     v.   Pauley,

, 473-76 (4th Cir. 2007); see also United States v.

Carter, 

, 330 (4th Cir. 2009) (recognizing that the

district    court    must        “place    on   the     record    an   individualized

assessment based on the particular facts of the case before it”

and that the “individualized assessment . . . must provide a

rationale       tailored    to    the     particular     case     at   hand    and   [be]

adequate    to    permit     meaningful         appellate      review”).          Although

Cooper argues that “[t]he goal of promoting respect for the law

and providing just punishment [would be] served with a sentence

of 121 months to 188 months,” we afford “due deference to the

district    court's      decision       that     the    § 3553(a)      factors,      on   a

whole, justify the extent of the variance.”                      

.

            Based on the foregoing, we affirm the district court’s

judgment.       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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