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

                                                                  FILED
                                                                  May 23, 2008
                                No. 07-10491
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

ENRIQUE ELIZONDO, also known as Rickey Elizondo

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:03-CR-395-3


Before GARWOOD, WIENER and GARZA, Circuit Judges.
PER CURIAM:*
      Enrique Elizondo was convicted of a jury of conspiracy to commit mail
fraud and was sentenced to serve 37 months in prison. The district court also
imposed a $172,276 restitution order, to be paid jointly and severally by Elizondo
and his codefendants. Id. On direct appeal, Elizondo challenged his sentence
of imprisonment and the restitution order pursuant to the intervening decision
in United States v. Booker, 543 U.S. 220 (2005). United States v. Garza, 429 F.3d



      *
      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should not be published and is not precedent except under the limited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. 07-10491

165, 168 (5th Cir. 2005). This court remanded the imprisonment portion of
Elizondo’s sentence but held that under the plain error standard, Booker did not
implicate the restitution order or the Mandatory Victims Restitution Act
(MVRA) and we accordingly rejected his complaints as to the restitution ordered
(and the MVRA). Garza, 429 F.3d at 169-71.1
      On remand, Elizondo challenged the relevant conduct findings, both in the
context of the term of imprisonment and the restitution order. The district court
held that it was barred by the mandate of this court from reviewing the
restitution order; it also reimposed the same 37-month term of imprisonment.
On appeal from this first resentencing, this court held that the district court
erred in concluding that the mandate rule barred it from considering Elizondo’s
relevant conduct as it related to the prison term to be imposed. United States
v. Elizondo, 475 F.3d 692, 695-96 (5th Cir.), cert. denied, 127 S. Ct. 1865 (2007).
We also expressly held, however, that the district court properly concluded that
it was barred from revisiting the restitution order under the mandate rule. Id.
at 696-97. We remanded the case “for resentencing in accordance with this
opinion.” Id. at 697.
      At the second resentencing, Elizondo had served his complete prison term,
and defense counsel and the district court agreed that Elizondo would receive no
relief from reconsideration of the relevant conduct as it related to his prison
term. Elizondo repeated his assertion, however, that he was entitled to a
reduction in his restitution order to the loss directly attributable and reasonably

      1
       We noted that “Elizondo did not object below to the order of restitution or
to the district court’s use of the MVRA. His claim is, therefore, reviewable only
for plain error.” Id. at 169. However, we held that Elizondo had properly
preserved his Booker claim as to the length of his confinement sentence by his
objection below under Blakely v. Washington, 124 S.Ct. 2531 (2004), to the
district court’s various upward adjustments to his base offense level. Garza at
170-71. Elizondo did not seek rehearing or certiorari; a co-defendant’s
application for certiorari was denied. Garza v. United States, 126 S.Ct. 1444
(2006).

                                        2
                                    No. 07-10491

foreseeable to him which he contended was only $500. The district court rejected
that contention, again finding that it was barred from reconsideration of the
restitution order by the mandate rule. The court reimposed the original 37-
month term of imprisonment and again ordered restitution of $172,276, to be
paid jointly and severally.
      On the third direct appeal of this case, Elizondo again asserts that he is
entitled to reduction of his restitution order to the limited quantity he believes
was reasonably foreseeable to him. He asserts that Booker is implicated by the
MVRA because restitution is a component of sentencing that is based on relevant
conduct findings determined under the Sentencing Guidelines. However, the
district court could not reconsider the applicability of Booker to the MVRA at
either of the resentencing proceedings pursuant to the mandate rule. See United
States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004). Although Elizondo does not
discuss the mandate rule in any depth, he asserts conclusionally that this court’s
original ruling on the issue “is clearly erroneous and works a manifest injustice,”
a recognized exception to the mandate rule. See United States v. Matthews, 312
F.3d 652, 657 (5th Cir. 2002). Because Elizondo did not raise this exception
during the first resentencing proceedings, it is in fact barred by the mandate
rule. See Lee, 358 F.3d at 321. Additionally, Elizondo’s conclusional assertion
is insufficient to establish a manifest injustice, particularly in light of the several
circuit court holdings that Booker is not implicated by the MVRA.
      Elizondo also asserts that the restitution order violated his rights under
the Fifth Amendment because it exceeded the amount necessary to compensate
victims for losses caused by his conduct. He maintains that he raised this issue
in his prior two appeals, but neither the district court nor this court addressed
the issue explicitly in the prior opinions. Under the mandate rule, the issue was
at least implicitly rejected in the prior appeals and is thus barred from review.
See Lee, 358 F.3d at 321. As Elizondo has not established that either of the



                                          3
                              No. 07-10491

claims he raises in this appeal are cognizable, his sentence and order of
restitution are AFFIRMED.




                                   4
