     Case: 09-50981     Document: 00511204413          Page: 1    Date Filed: 08/16/2010




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

                                                  FILED
                                                                           August 16, 2010
                                     No. 09-50981
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

TERRY MICHAEL MILLER,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:06-CR-125-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Terry Michael Miller was convicted by a jury of two counts of assaulting
a federal officer in violation of 18 U.S.C. § 111(a) and (b). Miller was sentenced
to 240 months of imprisonment on both counts, with 60 months on count two to
run consecutively, for a total term of imprisonment of 300 months and three
years of supervised release on both counts to run concurrently. The district
court ordered Miller to pay $3,000 in restitution to the victim named in count
one.       On appeal, we determined that the counts were multiplicitous for

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50981

sentencing purposes, vacated and remanded Miller’s sentence to correct this
error, and affirmed the judgment in all other respects. United States v. Miller,
576 F.3d 530, 531 (5th Cir.), cert. denied, 130 S. Ct. 652 (2009).
      At resentencing, the district court selected count one as the count of
conviction, sentenced Miller to 240 months of imprisonment and three years of
supervised release, and ordered him to pay a $25,000 fine and $3,000 in
restitution to the victim. Miller contends that the district court violated the
mandate rule by imposing the fine because the error identified by this court did
not affect the district court’s prior decision not to impose a fine.
      “The only issues on remand properly before the district court are those
issues arising out of the correction of the sentence ordered by this court.” United
States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998). Our prior determination
that the counts were multiplicitous did not make the district court’s previous
finding that Miller was unable to pay a fine “newly relevant.” United States v.
Lee, 358 F.3d 315, 326 (5th Cir. 2004). Therefore, the district court violated the
mandate rule by imposing the fine. We exercise our discretion to correct this
forfeited error because it is clear or obvious, affects Miller’s substantial rights,
and “‘seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.’” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (alteration
in original) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
      Miller also challenges the district court’s calculation of the offense level
and the factual basis of the restitution award. Failure to raise an issue in an
initial appeal constitutes waiver of that issue “unless ‘there was no reason to
raise it in the initial appeal.’” United States v. Griffith, 522 F.3d 607, 610 (5th
Cir. 2008) (quoting Lee, 358 F.3d at 324). The specific offense-level calculations
that Miller complains of and the factual sufficiency of the restitution award were
germane to the first appeal, and our mandate did not “breathe[] life” into these
issues. See id. at 611. Therefore, Miller should have raised these issues in the
first appeal. See id. at 610-11. By failing to do so, Miller waived consideration

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                                 No. 09-50981

of them. See id.; see also United States v. Rodriguez, 602 F.3d 346, 350 (5th Cir.
2010).
      Miller contends that his 240-month sentence is substantively unreasonable
because it is more severe than other sentences imposed for violating § 111 and
because the district court gave undue weight to his criminal history. Miller was
convicted of attempting to run over law enforcement officers who were
attempting to execute a warrant. Miller’s extensive 32-year criminal history
included but was not limited to attempted murder, engaging in organized
criminal conduct, burglary of a building, several thefts, several burglaries of a
habitation, and family violence assault.
      In light of Miller’s criminal history and pattern of recidivism, as well as
the district court’s finding that the maximum sentence was necessary to promote
the goals of the sentencing factors set forth in 18 U.S.C. § 3553(a), Miller has not
rebutted the presumption of reasonableness that applies to his within-guidelines
sentence. See United States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th
Cir. 2008). Thus, he has not shown error, plain or otherwise, with respect to the
240-month sentence.
      The judgment of the district court is VACATED with respect to the
imposition of the fine and AFFIRMED in all other respects.




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