                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 24, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-10516
                         Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

GERALD HENRY BOWERMAN,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 7:00-CR-4-4-R
                       --------------------

Before GARZA, DEMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Gerald Bowerman appeals from resentencing following remand

of his conviction for conspiracy to possess with intent to

distribute and distribution of methamphetamine.    This court had

remanded the portion of Bowerman’s sentence that imposed a two-

level adjustment for possession of a firearm in the absence of

evidence to support the adjustment.




     *
       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this opinion should not be published and is not precedent except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. 04-10516
                                -2-

     Bowerman argues that the district court exceeded the scope

of this court’s remand order by permitting the Government to

introduce new witness testimony at the resentencing hearing.

     We review whether the district court properly interpreted

the scope of this court’s remand order de novo.     See United

States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004).     The law of the

case doctrine prohibits courts from relitigating matters that

have previously been decided.    See id.   As a corollary to the law

of the case doctrine, the mandate rule provides that the district

court comply on remand with the appellate court’s mandate by

addressing “only those discrete, particular issues identified by

the appeals court for remand.”   See id. at 320-21.

     In this court’s opinion on remand, the panel expressly noted

that the Government failed to present any evidence either in the

trial transcript or in the presentence report that established

that Bowerman possessed a firearm in connection with his drug

offense.   Neither in this court’s opinion nor in its mandate did

it direct the district court to conduct additional fact-finding

on this issue.   The Government fails to offer any explanation for

why this evidence could not have been presented to this court in

the first appeal or in a motion for reconsideration.     See United

States v. Becerra, 155 F.3d 740, 754 (5th Cir. 1998).      The

Government’s failure to meet its burden of proof is not a

cognizable exception to the law of the case doctrine.      See Lee,

358 F.3d at 320 n.3.   Accordingly, the district court’s
                               No. 04-10516
                                    -3-

consideration of the additional evidence is barred by the law of

the case doctrine and the mandate rule.       See Becerra, 155 F.3d at

754.    Bowerman’s challenge to the constitutionality of the

firearm adjustment in light of Blakely v. Washington, 124 S. Ct.

2531, 2543 (2004), is moot in light of this determination.

Accordingly, the sentence of the district court is VACATED and

REMANDED.    The district court is instructed to resentence

Bowerman without the adjustment for firearm possession.

       VACATED and REMANDED.
