United States v. Ho , 132 F. App'x 560 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 1, 2005
Charles R. Fulbruge III
Clerk
No. 03-21085
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC KUNG-SHOU HO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
No. 4:00-CR-183-1
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Eric Ho was convicted of violating the Clean Air Act. The
district court denied certain sentencing enhancements urged by the
government, including a U.S.S.G. § 2Q1.2 enhancement based on the
emission of asbestos into the environment and a § 3B1.2 enhancement
for Ho’s status as a leader or organizer of activity involving five
*
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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
No. 03-21085
-2-
or more persons or that was otherwise extensive. The district
court sentenced Ho to two months of community confinement and six
months of home confinement, and declined to rule on Ho’s motion for
downward departure because Ho’s ultimate sentence did not include
imprisonment. We affirmed the conviction but reversed and remanded
for resentencing, holding that the government had carried its
burden of proof on the § 2Q1.2 enhancement and that the district
court had erred in its interpretation of the term “otherwise
extensive.” United States v. Ho, 311 F.3d 589, 610-11 (5th Cir.
2002).
On remand, Ho renewed his motion for downward departure. The
district court stated that, although it believed a departure was
warranted, it was without authority to grant one because it was
limited on remand to the issues decided by this court’s mandate in
the first appeal.
The district court erred in concluding that it did not have
the authority to reconsider Ho’s motion for downward departure on
remand. See United States v. Lee, 358 F.3d 315, 321 (5th Cir.
2004). Accordingly, we vacate Ho’s sentence and remand for
resentencing. See United States v. Flanagan, 87 F.3d 121, 125 (5th
Cir. 1996). We express no opinion regarding the merits of Ho’s
motion for downward departure.
We deny Ho’s motion to remand as moot. Because we have
decided this matter based on the downward departure issue, we do
No. 03-21085
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not reach Ho’s additional claim that his sentence is invalid in
light of United States v. Booker, 125 S. Ct. 738 (2005).
VACATED AND REMANDED; MOTION TO REMAND DENIED AS MOOT.