The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4326
LENT CHRISTOPHER CARR, II,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Malcolm J. Howard, District Judge.
(CR-99-30-HO)
Submitted: April 21, 2003
Decided: June 3, 2003
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Terry F. Rose, Smithfield, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Assistant United
States Attorney, Christine Witcover Dean, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. CARR
OPINION
PER CURIAM:
Lent Christopher Carr, II, appeals from the district court’s order on
remand dismissing Carr’s arson conviction and re-affirming his con-
victions for conspiracy to commit mail fraud and for bank fraud. We
affirm.
Carr’s three convictions arose out of the arson of a building used
as a home and church. He was originally sentenced to a total of 125
months imprisonment and ordered to pay restitution. This court later
vacated Carr’s arson conviction and remanded for a hearing on the
interstate commerce connection regarding the arson count. United
States v. Carr, 271 F.3d 172 (4th Cir. 2001).
After remand, the district court dismissed the arson count, re-
affirmed the other counts, and again sentenced Carr to a total of 125
months of imprisonment. Carr contends that the district court should
have reviewed the federal jurisdiction element and factual basis for all
the offenses, and not just the arson count. Our opinion specifically
limited the scope of the remand to determining whether the Govern-
ment could prove a sufficient factual basis for the interstate commerce
prong of the arson count.
Next, Carr argues that even if review of the other counts was out-
side of the scope of the remand, the district court should have
reviewed those counts due to blatant error. A district court may con-
sider issues foreclosed by the mandate in the following "extraordinary
circumstances": (1) change in controlling legal authority, (2) signifi-
cant new evidence, or (3) a blatant error resulting in serious injustice.
United States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993). We find that the
judgment does not reflect any blatant error.
Next, Carr argues that the district court erred by applying the
guideline for arson when sentencing him for the mail fraud conviction
because his arson conviction was dismissed. However, it is well set-
tled that acquittal of an offense does not preclude a sentence enhance-
ment based upon the same conduct. Monge v. California, 524 U.S.
UNITED STATES v. CARR 3
721, 728 (1998) (holding that double jeopardy principles are inappli-
cable to sentencing proceedings); United States v. Watts, 519 U.S.
148, 157 (1997) (per curiam) (holding that a jury’s verdict of acquittal
does not prevent the sentencing court from considering conduct
underlying the acquitted charge, so long as that conduct has been
proved by a preponderance of the evidence); United States v. Marti-
nez, 136 F.3d 972, 979 (4th Cir. 1998) (same); see also United States
v. Hillary, 106 F.3d 1170, 1172-73 (4th Cir. 1997) (collateral relief
on an 18 U.S.C. § 924(c) conviction does not prevent application of
sentencing enhancement for exactly the same conduct). Moreover,
there is no prohibition against imposing the same sentence upon
remand as originally imposed. See, e.g., Alabama v. Smith, 490 U.S.
794 (1989) (upholding imposition of harsher sentence upon resentenc-
ing after original conviction was successfully challenged on appeal).
We therefore find no error in the sentence.
Finally, Carr argues that the district court erred in re-imposing the
restitution order. Our review of the record discloses that the district
court did not plainly err in re-affirming the restitution in the original
order because Carr agreed in his plea agreement to make restitution
to the victims of his offenses. This court’s prior opinion stated that it
would not vacate the guilty plea or "disturb the plea agreement
between Carr and the Government." Carr, 271 F.3d at 181.
Accordingly, we affirm the district court’s order. We deny Carr’s
motion to act as co-counsel during the appeal. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED