                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 16, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-30255
                           c/w No. 04-30292
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

EMMETT SPOONER, JR.,

                                     Defendant-Appellant.

                       --------------------
          Appeals from the United States District Court
               for the Middle District of Louisiana
                     USDC No. 00-CR-145-ALL-D
                       --------------------

Before    DAVIS, SMITH and DENNIS, Circuit Judges

PER CURIAM:*

     Emmett Spooner, Jr., appeals his sentence of thirty-three

months of imprisonment and three years of supervised release

imposed on resentencing.    Spooner was convicted by a jury of three

counts of mail fraud and three counts of wire fraud.

     Spooner contends that the district court erred by denying

relief on his motion, challenging the indictment and the grand jury

proceedings.   Spooner has not shown error in the district court’s

reason for dismissing his motion.     See United States v. Lee, 358

     *
       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this opinion should not be published and is not precedent except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. 04-30255 c/w No. 04-30292
                                 -2-

F.3d 315, 321, 323 (5th Cir. 2004); United States v. Cothran, 302

F.3d 279, 286 n.7 (5th Cir. 2002).

     Spooner challenges the district court’s denial of his motion

for a continuance of the resentencing hearing.        He asserts that he

would have presented evidence concerning the prior convictions that

were used to determine his criminal history category.

     Spooner’s    reasons   for   requesting   a   continuance   concerned

issues that exceeded the scope of this court’s remand opinion.        See

Lee, 358 F.3d at 321, 323; United States v. Marmolejo, 139 F.3d

528, 531 (5th Cir. 1998).    Spooner has not shown that the denial of

a continuance caused him prejudice.      United States v. Olaniyi-Oke,

199 F.3d 767, 771 (5th Cir. 1999).      The denial of Spooner’s motion

for a continuance was not an abuse of discretion.         Id.

     Spooner contends for the first time on appeal that prior to

his resentencing, the district court did not grant him the right of

allocution.      Spooner asserts that if he had been allowed to

allocute, he would have asked the district court to reconsider the

use of his prior convictions in determining his criminal history

category, he would have challenged the restitution order, and he

would have requested a downward departure based on his bi-polar

disorder.

     We review Spooner’s argument for plain error.         United States

v. Reyna, 358 F.3d 344, 351 (5th Cir.) (en banc), cert. denied, 124

S. Ct. 1626 (2004).   Although the denial of the right to allocution

in the instant case was plain error that is presumed to have
                    No. 04-30255 c/w No. 04-30292
                                 -3-

affected substantial rights, we decline to exercise our discretion

to correct the error because the error did not “‘seriously affects

the   fairness,   integrity      or    public     reputation     of     judicial

proceedings.’”    Id. at 352-53.

      Spooner challenges the district court’s denial of his motion

for release pending appeal of the judgment on resentencing.                    We

rejected    Spooner’s   motion   for   release     pending     appeal    of   the

resentencing judgment initially and on reconsideration, and we will

not reopen what we have already decided.             See United States v.

Phipps, 368 F.3d 505, 511 n.3 (5th Cir. 2004); United States v.

Spooner, No. 04-30255 (5th Cir. May 14, 2004 and June 8, 2004)

(unpublished).

      Spooner asserts that the district court did not comply with

the remand opinion.     He argues that the district court should have

resentenced him “as if [he] had not been sentenced (at all).”                  He

asserts that the district court should have addressed all of his

arguments    concerning    the   use   of   his   prior   convictions,        the

restitution award, and his reasons for mitigation of punishment.

      “‘[O]nly those discrete, particular issues identified by the

appeals court for remand are properly before the resentencing

court.’”    Lee, 358 F.3d at 321 (citation omitted).             The district

court properly refused to consider the issues asserted by Spooner

that were not related to the U.S.S.G. § 3C1.1 issue specified in

the remand opinion.       See id. at 321, 323.
                     No. 04-30255 c/w No. 04-30292
                                  -4-

     Spooner does not challenge in his initial brief the district

court’s finding on resentencing that the U.S.S.G. § 3C1.1 increase

applied   for    obstruction    of   justice   increase   was   not    clearly

erroneous. Accordingly, Spooner has abandoned any challenge to the

district court’s findings at resentencing.           See United States v.

Narviz-Guerra, 148 F.3d 530, 537 n.3 (5th Cir. 1998) (issue that is

not briefed is abandoned).       We do not consider Spooner’s challenge

to the district court’s U.S.S.G. § 3C1.1 findings which are raised

for the first time in Spooner’s reply brief.              United States v.

Hoster, 988 F.2d 1374, 1383 (5th Cir. 1993).

     Finally, Spooner asserts that his sentence was imposed in

violation   of   Blakely   v.   Washington,    124   S.   Ct.   2531   (2004).

Spooner’s argument is foreclosed by United States v. Pineiro, 377

F.3d 464, 466 (5th Cir. 2004), petition for cert. filed, (U.S. July

14, 2004) (No. 04-5263).

     Accordingly, the judgment of the district court is AFFIRMED.
