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

                                                                FILED
                                                              February 11, 2009
                               No. 07-40231
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

UNITED STATES OF AMERICA

                                         Plaintiff-Appellee

v.

JOEL SALINAS

                                         Defendant-Appellant


                Appeal from the United States District Court
                     for the Southern District of Texas
                          USDC No. 7:03-CR-106-7


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
     Joel Salinas pleaded guilty to possession with intent to distribute more
than five kilograms of cocaine and was sentenced to a term of imprisonment of
168 months. On direct appeal, he argued that he was sentenced in violation of
United States v. Booker, 543 U.S. 220 (2005) because the district court
determined that he was accountable for the equivalent of 126,000 kilograms of
marijuana, a fact not admitted by Salinas nor found by a jury. This court



     *
      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should not be published and is not precedent except under the limited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. 07-40231

determined that the district court’s factual determination concerning the drug
amount was made in violation of Booker and that the Government had not met
its burden of establishing, beyond a reasonable doubt, that the error was
harmless. See United States v. Salinas, No. 04-40725 (5th Cir. Dec. 1, 2005).
      Following the remand, Salinas argued that the district court should
reconsider its determination concerning the drug amount for which he was held
accountable and also reconsider the scope of his relevant conduct. Salinas
conceded that his base offense level would remain the same if the district court
accepted his argument concerning the amount of drugs attributed to him. Thus,
any error with respect to the district court’s drug quantity calculation was
harmless error. See United States v. Solis, 299 F.3d 420, 462 (5th Cir. 2002).
      Salinas argues, however, that a favorable ruling on his relevant conduct
argument would make him eligible for the application of the safety valve
provision. The Government argues that the safety valve issue was not within
the scope of this court’s mandate.
      Salinas did not appeal the district court’s denial of his request for the
application of the safety valve provision, which he made at his initial sentencing.
Because Salinas did not challenge the safety valve ruling in his previous appeal,
he waived that issue and it was beyond the scope of the mandate ordering the
resentencing. See United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004).
      Nor has Salinas shown that the safety valve issue falls within any of the
exceptions to the mandate rule. Salinas did not provide any substantially
different evidence at the resentencing, did not point out any relevant change of
law by a controlling authority, and did not show that the district court’s
determination of the safety valve issue was so clearly erroneous as to result in
a manifest injustice. See United States v. Matthews, 312 F.3d 652, 657 (5th Cir.
2002).
      Accordingly, Salinas’s sentence is AFFIRMED.



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