United States v. Skelton ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-20268
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MARK R SKELTON
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CR-169-1
_________________________________________________________________
April 4, 2001
Before KING, Chief Judge, and REAVLEY and JONES, Circuit Judges.
PER CURIAM:*
The district court did not err in refusing to reconsider the
four-level upward adjustment under the Sentencing Guidelines of
the sentence of Defendant-Appellant Mark R. Skelton. See U.S.
SENTENCING GUIDELINES MANUAL § 2F1.1(b)(7)(A) (1998). This court’s
*
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that this opinion should not be published and is not precedent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.
opinion in Skelton’s initial appeal limited the district court on
resentencing to recalculation of the special assessment and the
amount of restitution. “[T]he resentencing court can consider
whatever this court directs – no more, no less. All other issues
not arising out of this court’s ruling and not raised before the
appeals court, which could have been brought in the original
appeal, are not proper for reconsideration by the district court
below.” United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir.
1998). We are not persuaded that Skelton could not have raised
in his initial appeal the issue of whether affirmance of his
conviction on less than all counts required reconsideration of
the determination that Skelton’s offense substantially
jeopardized the soundness of Westheimer Bank.
Skelton’s further argument that, under the Supreme Court’s
decision in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), facts
affecting his sentence were required to have been proved to a
jury beyond a reasonable doubt is foreclosed by this court’s
opinions in United States v. Keith, 230 F.3d 784, 787 (5th Cir.
2000) (stating that Apprendi is “limited to facts which increase
the penalty beyond the statutory maximum, and does not invalidate
a court’s factual finding for the purposes of determining the
applicable Sentencing Guidelines”), and United States v. Meshack,
225 F.3d 556, 576-77 (5th Cir. 2000), cert. denied, 121 S. Ct.
834 (2001), amended on reh’g in part, --- F.3d ----, 2001 WL
224656 (2001).
2
Skelton’s sentence is therefore AFFIRMED.
3