United States v. Jose Chavira

Case: 13-41113 Document: 00512724316 Page: 1 Date Filed: 08/06/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
August 6, 2014
No. 13-41113 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOSE RAFAEL CHAVIRA,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:11-CR-396-8
Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
In his second appeal, Jose Rafael Chavira challenges the 135-month
sentence, imposed on remand, following his conviction for possession, with
intent to distribute, over 1000 kilograms of marijuana. See United States v.
Chavira, 530 F. App’x 330 (5th Cir. 2013). On Chavira’s first appeal, this
matter was remanded for resentencing because the district court erred by
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
Case: 13-41113 Document: 00512724316 Page: 2 Date Filed: 08/06/2014
No. 13-41113
holding Chavira accountable for cocaine found in an attic and including that
cocaine in the drug-quantity calculation. Id. at 332–35.
Chavira contends the district court erred in applying a two-level firearms
enhancement and by determining he was not eligible either for safety-valve
relief or a minor-role reduction. He also contends the court erred by not
addressing these issues at resentencing and by not conducting a de novo
resentencing hearing on remand.
Chavira’s claims regarding the firearms enhancement and the safety-
valve and minor-role adjustments were not raised in his original appeal and
are, pursuant to the mandate rule, beyond the scope of our remand. See United
States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (explaining “an objection to
a sentence must be appealed for the district court, on remand, to have
authority to revisit it”); United States v. Lee, 358 F.3d 315, 323 (5th Cir. 2004);
United States v. Marmolejo, 139 F.3d 528, 530–31 (5th Cir. 1998). Chavira has
not demonstrated these claims fall within an exception to the mandate rule.
See United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002). Therefore,
the claims in this second appeal will not be considered.
AFFIRMED.
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