USA vs. Floyd, (5th Cir. 2004)

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* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit FILED December 30, 2004 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 04-10059 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MILENA FLOYD, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 3:99-CR-19-4-L Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM: * Mil ena Floyd was convicted by a jury of conspiracy to commit mail fraud and aiding and abetting mail fraud in violation of 18 U.S.C. §§ 371 and 1341. Floyd argues that in view of B lakely v. Washington , 124 S. Ct. 2531 (2004), the district court erred in calcula ting her offense level using guideline factors that were neither admitted by her not charged and found by a jury beyond a reasonable do ubt. The Government argues that FloydÂ’s argument challenging the enhancements to her offense level is barred by the law of the case doctrine. “[O]nly those discrete, particular issues identified by the appeals court for remand are properly before the resenten cing court.” U nited States v. Marmolejo , 139 F.3d 528, 530 (5th Cir.1998) (“ Marmolejo II ”). In FloydÂ’s first appeal, we determined that the district court erred in finding that Floyd had a prior conviction, vacated her sentence, and remanded for resentencing in accordance with our opinion. Floyd , 343 F.3d a t 373. Therefore, the only issue before the district court on remand was whether Floyd had a prior conviction which should be included in determ ining her criminal history category. Because Floyd could not have challenged the sentencing enhancements in the district court on remand for resentencing, she may not raise this issue on appeal after remand. See Marmolejo II , 139 F.3d at 530.

Therefore, we will not address FloydÂ’s argument that the district court erred in calculat ing her offense level using guideline factors that were not admitted by Floyd or charged and found by a jury beyond a reasonable doubt.

Floyd argues that the district court abused its discretion in denying her motion for a downward departure based on the probation officerÂ’s bad faith. She argues that the district courtÂ’s decision is reviewable because the courtÂ’s statements at the sentencing hearing indicate that it did not believe that it had the discretion to grant the motion. The record of the resentencing hearing indicates that the district court denied the motion because it determined that Floyd did not present sufficient evidence to establish that the probation officer acted in bad faith, and not based on the erroneous be lief that it did not have the legal authority to grant the motion. Therefore, the district courtÂ’s denial of FloydÂ’s motion for a downward departure is not reviewable. See United States v. Buck , 324 F.3d 786, 797 (5th Cir. 2003).

AFFIRMED .

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