United States v. Hall , 115 F. App'x 219 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 16, 2004
Charles R. Fulbruge III
Clerk
No. 04-20326
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN RAY HALL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-7-1
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Kevin Ray Hall was convicted after a jury trial of being a
felon in possession of a firearm. We previously remanded to the
district court for resentencing, and Hall appeals from that
proceeding.
Hall argues, relying on Blakely v. Washington, 124 S. Ct.
2531 (2004), that the district court plainly erred by increasing
his offense level by two levels based on the district court’s
finding that the firearm had been stolen. He also contends that
*
Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
No. 04-20326
-2-
the evidence presented at trial was insufficient to establish
that the firearm that he possessed traveled in or affected
interstate commerce. Hall concedes that these arguments are
foreclosed but raises them to preserve further review.
In United States v. Pineiro, 377 F.3d 464, 465-66 (5th Cir.
2004), petition for cert. filed (U.S. July 14, 2004) (No. 04-
5263), this court held that Blakely does not apply to the federal
sentencing guidelines. Therefore, Hall’s sentencing argument is
foreclosed.
Hall unsuccessfully raised the interstate commerce issue in
his prior appeal. See United States v. Hall, No. 03-20573 (5th
Cir. Feb. 12, 2004) (unpublished). This issue is barred by the
law of the case doctrine. See United States v. Lee, 358 F.3d
315, 320 (5th Cir. 2004).
AFFIRMED.