           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        December 19, 2008
                                     No. 08-20073
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

HECTOR GONZALEZ REYNA

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 4:04-CR-166-ALL


Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Hector Gonzalez Reyna pleaded guilty without a plea agreement to
possession of a firearm by a felon and was sentenced to 120 months of
imprisonment and three years of supervised release. Reyna argues that the
district court violated the law of the case doctrine and the mandate rule by
increasing his base offense level for a prior conviction for a controlled substance
offense and calculating the guideline range to be greater than 41 to 51 months.
He contends that in his previous appeal, this Court held that the properly


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-20073

calculated guideline range was 41 to 51 months and remanded expressly because
it was unclear whether the district court would have imposed a variance of up
to 120 months when starting from the correct range as articulated by this Court.
He notes that the Government never moved to supplement the record on appeal
with any documents pertaining to his 2000 conviction and never moved this
Court for rehearing. He argues that this Court should again vacate his sentence
and remand for resentencing.
      We review de novo a district court’s application of the remand order,
including whether the law of the case doctrine or mandate rule forecloses the
district court’s actions on remand. United States v. Pineiro, 470 F.3d 200, 204
(5th Cir. 2006).
      In our prior opinion, United States v. Reyna, 243 F. App’x 824, 826 (5th
Cir. 2007), we held that “the district court erred in determining, based on the
PSR’s description of his conduct, that Reyna’s prior conviction was a controlled
substance offense.” We did not purport to limit the ability of the district court
to consider other evidence on remand bearing on the issue whether Reyna’s prior
offense was a controlled substance offense. There is nothing in our mandate
which would prohibit the district court from looking at the charging documents
and judgment and making a new determination on this issue. The issue arose
out of the correction of the sentence by this court in the first appeal. See United
States v. Lee, 358 F.3d 315, 320-22 (5th Cir. 2004); United States v. Marmolejo,
139 F.3d 528, 531 (5th Cir. 1998).
      The new evidence shows that Reyna pleaded guilty to delivery of cocaine
by constructive transfer, which makes the prior conviction a controlled substance
offense. See United States v. Roberts, 255 F. App’x 849, 850-51 (5th Cir. 2007),
cert. denied, 128 S. Ct. 1728 (2008). The district court did not err in considering
the new evidence in determining that the base offense level was 20, yielding a
guideline range of 78-97 months.



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      Reyna argues, alternatively, that the district court once again reversibly
erred by enhancing his sentence for a prior conviction for a “controlled substance
offense” because his 2000 Texas conviction for delivery of a controlled substance
did not qualify as a “controlled substance offense” for another reason he did not
raise in the prior appeal or in the district court on remand. Reyna contends that
the Sentencing Guidelines define a “controlled substance offense” in part as “an
offense under federal or state law, punishable by imprisonment for a term
exceeding one year.” He argues that, using the analysis called for by a recent
Supreme Court opinion, United States v. Rodriguez, 128 S. Ct. 1783 (2008), his
prior state offense was not “punishable by imprisonment for a term exceeding
one year.”
      Under the law of the case doctrine, “[t]he only issues on remand properly
before the district court are those issues arising out of the correction of the
sentence ordered by this court. In short, the 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.” Marmolejo, 139 F.3d at 531. If an issue not raised in the original
appeal is not proper for consideration in the district court on remand, a
fortiorari, it is improper for this court to consider it on appeal after remand.
      Reyna argues that the law of the case doctrine should not apply because
of two exceptions, an intervening change of law by controlling authority and
manifest injustice.   Although Reyna’s plea agreement allowed him to be
sentenced to eight months in prison, under Texas law, the offense remains a
felony punishable by law for up to two years, even if the offense is sentenced as
a misdemeanor. See United States v. Rivera-Perez, 322 F.3d 350, 351-52 (5th
Cir. 2003). Reyna argues that Rodriguez, 128 S. Ct. 1783, provides new law
which changes the analysis used in Rivera-Perez.



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                                  No. 08-20073

      Rodriguez has no bearing on Reyna’s case. It is clear from Texas law and
the documents in Reyna’s state case that he faced the possibility of a sentence
up to two years, and he entered into a plea agreement for a sentence of 8
months. His plea agreement does not change the fact that his felony conviction
was “an offense under federal or state law, punishable by imprisonment for a
term exceeding one year.” § 4B1.2(b). The problem in Rodriguez was that it
could not be determined from looking at the statute of conviction whether the
defendant was subject to the enhanced sentence as a recidivist. 128 S. Ct. at
1791. No such problem exists in this case in determining, by looking at the
statutes, that Reyna’s offense was punishable by imprisonment for a term
exceeding one year. See TEX. HEALTH AND SAFETY CODE ANN. §481.112 (b); TEX.
PENAL CODE ANN. § 12.35(a). Reyna has not shown that any exceptions to the
law of the case doctrine apply which would allow consideration of his new
argument raised for the first time in this second appeal.
      Reyna argues that the district court committed reversible error by
imposing an unreasonable sentence substantially above the applicable Guideline
imprisonment range. Most of his arguments are predicated on the incorrect
assumption that his correct guideline range was 41 to 51 months, and those
arguments are thus without merit.
      Reyna also argues that the district court committed procedural error in
violation of Gall v. United States, 128 S. Ct. 586, 596-97 (2007) by failing to
adequately explain the sentence it imposed. He contends that the district court
failed to explain why a variance up to 120 months was justified. Reyna never
raised procedural unreasonableness for failure to articulate reasons in the
district court. When a defendant argues for the first time on appeal that the
sentence is procedurally unreasonable because the district court failed to
adequately explain its reasons for the sentence, appellate review of that issue is
for plain error. See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th
Cir.), cert. denied, 2008 U.S. LEXIS 8728 (U.S. Dec. 1, 2008).

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      The guideline range was correctly determined by the district court to be
78-97 months. The district court explained that it was varying upward based on
the fact that the Sentencing Commission had amended the Guidelines to again
provide for a base offense level of 22 for possession of a semiautomatic pistol
such as the one Reyna possessed. The district court acknowledged that it could
not apply the 2007 version of the Guidelines to determine Reyna’s advisory
guideline range, but it stated that it could consider the new Guideline in
determining whether a non-guideline sentence was appropriate. This is an
adequate explanation.
      Lastly, Reyna argues that the sentence was unreasonable and excessive
because it is well beyond that necessary to comply with the purposes of 18 U.S.C.
§ 3553(a). Starting with the correct guideline range of 78 to 97 months, and
considering the district court’s reasons for the upward variance to 120 months,
the sentence was reasonable. See Gall, 128 S. Ct. at 597.
      AFFIRMED.




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