     Case: 10-40896     Document: 00511533729         Page: 1     Date Filed: 07/08/2011




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

                                                                            FILED
                                                                            July 8, 2011
                                     No. 10-40896
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

BRENDA DAVIS MILLER, also known as Brenda Graham Davis,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 6:07-CR-82-1


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Brenda Davis Miller appeals the 90-month sentence of imprisonment
imposed at resentencing on her convictions of one count of conspiring to commit
health care fraud and one count of conducting financial transactions with
criminally derived property. Miller argues that the district court exceeded the
scope of the remand by considering evidence proffered by the government at
resentencing. “We review de novo a district court’s interpretation of our remand
order, including whether the law-of-the-case doctrine or mandate rule forecloses

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-40896

the district court’s actions on remand.” United States v. Pineiro, 470 F.3d 200,
204 (5th Cir. 2006) (citation omitted).
      Where “the case is remanded for resentencing without specific
instructions, the district court should consider any new evidence from either
party relevant to the issues raised on appeal.” United States v. Carales-Villalta,
617 F.3d 342, 345 (5th Cir. 2010). Our opinion on direct appeal did not limit the
ability of the district court to consider on remand evidence bearing on the issue
of whether Miller had acted willfully in failing to provide financial information
to the probation officer. See United States v. Miller, 607 F.3d 144, 152 (5th Cir.
2010). Indeed, our opinion indicated that the district court had the discretion to
develop the record on remand. Id. Thus, to the extent the district court
considered the evidence proffered by the government, Miller has not shown
error. See Carales-Villalta, 617 F.3d at 345-46.
      Miller also contends that the district court exceeded the scope of the
remand when it reassessed the sentencing factors and imposed a sentence 12
months above the bottom of the newly-determined Guideline range. She notes
that she was originally sentenced to a 97-month term of imprisonment, which
was at the bottom of the Guideline range. Because Miller did not raise this
objection in the district court, she must demonstrate plain error, which requires
a showing that the forfeited error is clear or obvious and affects her substantial
rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If she makes
such a showing, this court has the discretion to correct the error but only if it
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotation marks, brackets, and citation omitted).
      As a result of the determination at resentencing that Miller would not
receive a two-level enhancement for obstruction of justice, a lower Guideline
range was established. The relationship of Miller’s sentence to the applicable
Guideline range thus became “newly relevant” at resentencing. United States
v. Lee, 358 F.3d 315, 325-26 (5th Cir. 2004).         Miller has not shown an

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                                 No. 10-40896

entitlement to relief under the plain error standard. See Puckett, 129 S. Ct. at
1429.
        AFFIRMED.




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