United States v. Floyd , 122 F. App'x 98 ( 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 30, 2004
Charles R. Fulbruge III
Clerk
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:*
Milena 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 Blakely
v. Washington, 124 S. Ct. 2531 (2004), the district court erred in
calculating her offense level using guideline factors that were
neither admitted by her not charged and found by a jury beyond a
reasonable doubt. The Government argues that Floyd’s argument
challenging the enhancements to her offense level is barred by the
*
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opinion should not be published and is not precedent except under the limited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.
law of the case doctrine. “[O]nly those discrete, particular
issues identified by the appeals court for remand are properly
before the resentencing court.” United States v. Marmolejo, 139
F.3d 528, 530 (5th Cir.1998) (“Marmolejo II”). In Floyd’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
at 373. Therefore, the only issue before the district court on
remand was whether Floyd had a prior conviction which should be
included in determining 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 Floyd’s argument that the district
court erred in calculating 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 officer’s bad faith. She argues that the district
court’s decision is reviewable because the court’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
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establish that the probation officer acted in bad faith, and not
based on the erroneous belief that it did not have the legal
authority to grant the motion. Therefore, the district court’s
denial of Floyd’s motion for a downward departure is not re-
viewable. See United States v. Buck, 324 F.3d 786, 797 (5th Cir.
2003).
AFFIRMED.
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