Vacated by Supreme Court, March 31, 2008



                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4901



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


RICKY EUGENE EVERHART,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:03-cr-00034-1)


Submitted:   July 31, 2007                 Decided:   August 21, 2007


Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Mark P. Foster, Jr., NIXON, PARK, GRONQUIST & FOSTER, P.L.L.C.,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina, Amy E. Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Ricky    Eugene   Everhart    appeals   the    sentence   imposed

following     remand    for    resentencing.      Initially,    we     affirmed

Everhart’s    convictions,*      but   found   Everhart’s    Sixth   Amendment

rights were violated in that he was sentenced pursuant to the then-

mandatory sentencing guidelines.           See United States v. Everhart,

166 F. App’x 61 (4th Cir. 2006) (unpublished).               Accordingly, we

vacated Everhart’s sentence and remanded case for resentencing in

accordance with United States v. Booker, 

(2005).

             On remand, the district court utilized the same guideline

calculations that were applied at Everhart’s initial sentencing —

a total offense level of forty and a criminal history category

III — yielding a sentencing guideline range of 360 months to life

imprisonment. The district court sentenced Everhart to 360 months’

imprisonment.        Everhart timely appealed.

             On appeal, Everhart asserts errors related to the jury

instructions and the jury’s findings, and raises two issues related

to the reasonableness of his sentence.            As an initial matter, we

conclude that the mandate rule precludes us from considering the

purported errors regarding the jury instructions and jury findings.

The mandate rule “forecloses relitigation of issues expressly or


     *
      Everhart was convicted of conspiracy to possess with intent
to distribute fifty grams or more of cocaine base, in violation of
21 U.S.C. §§ 841, 846 (2000), and two counts of possession with
intent to distribute fifty grams or more of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (2000).

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impliedly decided by the appellate court.”           United States v. Bell,

, 66 (4th Cir. 1993).        We have already affirmed Everhart’s

convictions,    and   our    remand    order   was   expressly   limited   to

resentencing.      See Everhart, 166 F. App’x at 63-64.             Therefore,

these issues, which relate to the integrity of the jury’s verdict

and the legal sufficiency of the jury instructions, are outside the

scope of our mandate.

           In   challenging     the    reasonableness    of   his   sentence,

Everhart first asserts that the district court “erroneously viewed

the low end of the guideline range as a mandatory minimum below

which [it] could not go without explicit on-the-record factual

justification.”       Everhart maintains that this is tantamount to

treating the guidelines as mandatory. Thus, according to Everhart,

by increasing his sentence based on judicially determined facts not

alleged in the indictment or found by a jury beyond a reasonable

doubt, the district court violated his Sixth Amendment rights.             At

the heart of Everhart’s argument is his contention that, because

the   indictment   only     charged   Everhart   with   offenses     involving

“cocaine base,” the district court improperly engaged in judicial

fact-finding in determining that the substance involved was “crack”

cocaine, a fact neither charged in the indictment nor proven to the

jury beyond a reasonable doubt.           Because the Government did not

explicitly prove that the substance was “crack” cocaine, Everhart




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argues, the district court should have sentenced Everhart pursuant

to the guideline for “cocaine.”

           Everhart’s argument fails for several reasons.          First,

Everhart’s assertion that the district court could not sentence

Everhart to a term of imprisonment outside the guidelines range

without express justification is an accurate statement of post-

Booker law.   See United States v. Hernandez-Villanueva, 

, 122-23 (4th Cir. 2007) (opining that a sentence outside the

advisory   Guidelines   range   will   be   found   unreasonable   if   the

sentencing court “provides an inadequate statement of reasons” for

the sentence); United States v. Khan, 

, 499 (4th Cir.

2006) (“[T]he court must explain the reasoning behind any sentence,

particularly sentences that vary from the range recommended by the

Guidelines.”).   Further, the distinction Everhart draws between

“crack” cocaine and cocaine base is entirely without merit.             As

Everhart acknowledges in his appellate brief, we have concluded

that “cocaine base” and “crack cocaine” are interchangeable terms.

United States v. Ramos, 

, 334 (4th Cir.), cert. denied,

(2006).    Finally, contrary to Everhart’s assertion

on this point, Booker does not preclude sentencing courts from

making factual determinations.         In fact, district courts are

authorized and required to do so.      See Rita v. United States, 

, 2465-66 (2000), (noting that the Supreme Court’s

“Sixth Amendment cases do not automatically forbid a sentencing


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court to take account of factual matters not determined by a jury

and to increase the sentence in consequence”); United States v.

Dalton, 

, 197 (4th Cir. 2007).

           Everhart next contends that the district court erred in

denying his motion for a variance sentence.           Post-Booker, we will

affirm a sentence that is within the statutorily prescribed range

and is reasonable.      United States v. Moreland, 

, 433

(4th Cir.), cert. denied, 

(2006).                “[A] sentence

within   the   proper   advisory     Guidelines    range    is   presumptively

reasonable.” United States v. Johnson, 

, 341 (4th Cir.

2006).    The Supreme Court recently upheld this presumption of

reasonableness.     

.

           Everhart’s    360-month     sentence,    which    was   within   the

prescribed period and and the lowest sentence under the properly

calculated     guidelines   range,    is     presumptively   reasonable     and

Everhart offers no compelling argument to rebut this presumption.

Accordingly, we reject Everhart’s contention that the district

court erred in denying his request for a variance sentence.

           Finally, Everhart argues that the 100-to-1 crack cocaine

to powder cocaine ratio proscribed in 21 U.S.C. § 841(b) (2000)

violates his equal protection rights.           However, we have repeatedly

considered and rejected such an argument. See, e.g., United States

v. Ford, 

, 1365 (4th Cir. 1996); United States v.




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Fisher, 

, 99-100 (4th Cir. 1995); United States v.

D’Anjou, 

, 612 (4th Cir. 1994).

           For    the   foregoing   reasons,   we    affirm   the   360-month

sentence imposed by the district court on remand. 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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