           IN THE UNITED STATES COURT OF APPEALS
                                            United States Court of Appeals
                    FOR THE FIFTH CIRCUIT            Fifth Circuit
                                                                                 F I L E D
                                                                                September 20, 2007
                                     No. 06-20773
                                   Summary Calendar                           Charles R. Fulbruge III
                                                                                      Clerk


UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee.
v.

FRANCISCO JAVIER ARCHUNDIA, also known as Francisco Archundia,
also known as Francisco Javier Archundia-Mendoza, also known as Francisco
Javier Archundia-Bustos,

                                                  Defendant-Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 4:04-CR-342-ALL



Before GARWOOD, GARZA and OWEN, Circuit Judges.
PER CURIAM:*
       Francisco Javier Archundia appeals from the sentence imposed at
resentencing for his conviction for illegal reentry following deportation. 8 U.S.C.
§ 1326(a) & (b)(2). This court previously vacated Archundia’s sentence and
ordered resentencing in light of United States v. Booker, 543 U.S. 200 (2005).


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-20773

For the first time at resentencing, Archundia argued that the district court erred
in applying the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for his
1997 Texas conviction for aggravated assault, Texas Penal Code § 22.02, but the
district court refused to consider the issue on the ground that it was beyond the
scope of this court’s remand. Archundia contends that the district court should
have recognized an exception to the mandate rule based on an intervening
change in the law.
      The mandate rule “is but a specific application of the general doctrine of
law of the case.” United States v. Matthews, 312, F.3d 652, 657 (5th Cir. 2002).
“Absent exceptional circumstances, the mandate rule compels compliance on
remand with the dictates of a superior court and forecloses relitigation of issues
expressly or impliedly decided by the appellate court.” United States v. Lee, 358
F.3d 315, 321 (5th Cir. 2004). The rule also bars “litigation of issues decided by
the district court but foregone on appeal or otherwise waived, for example
because they were not raised in the district court.” Id. The mandate rule
applies unless:   “(1) [t]he evidence at a subsequent trial is substantially
different; (2) there has been an intervening change of law by a controlling
authority; [or] (3) the earlier decision is clearly erroneous and would work a
manifest injustice.” Matthews, 312 F.3d at 657.
      Archundia has not demonstrated that United States v. Fierro-Reyna, 466
F.3d 324 (5th Cir. 2006) represents an intervening change of law by controlling
authority or that any other exception to the mandate rule applies to his case.
See Matthews, 312 F.3d at 657. In fact the Texas aggravated assault statute
Archundia challenges was recently held to qualify as a aggravated assault
within the meaning of section 2L1.2. See United States v. Guillen-Alvarez, 489
F.3d 197, 200-01 (5th Cir. 2007). Because Archundia’s challenge to the 16-level
enhancement was not raised in his initial appeal, the issue was not properly



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                                 No. 06-20773

before the court at resentencing. See United States v. Marmolejo, 139 F.3d 528,
530-31 (1998).
      Archundia repeats his argument unsuccessfully made in his initial appeal
that his sentence under section 1326(b) is unconstitutional in light if Apprendi
v. New Jersey, 530 U.S. 466 (2000). We do not reconsider this argument in the
light of the law of the case doctrine. See Matthews, 312 F.3d at 657.
                                 AFFIRMED.




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