     Case: 14-30084      Document: 00512988898         Page: 1    Date Filed: 04/01/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-30084
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             April 1, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

DAVID SAMUELS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CR-123-1


Before STEWART, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM: *
       David Samuels appeals the sentence imposed following remand. He was
convicted of conspiracy to commit mail and wire fraud (count 1), mail fraud
(counts 2 and 3), wire fraud (counts 5 through 11), use of fire to commit
obstruction of justice (counts 13 and 14), and making false statements (count
15). He was resentenced to a total of 660 months of imprisonment and three
years of supervised release.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-30084     Document: 00512988898     Page: 2   Date Filed: 04/01/2015


                                  No. 14-30084

      First, Samuels contends that the district court’s fact finding relevant to
the calculation of the guidelines range violated his Fifth Amendment right to
due process and Sixth Amendment right to a trial by jury. Review of this claim
is barred by the law-of-the-case doctrine; we rejected the same claim in the
original appeal, and Alleyne v. United States, 133 S.Ct. 2151 (2013), is not an
intervening change of law as applied to the facts of this case. See United States
v. Teel, 691 F.3d 578, 582-84 (5th Cir. 2012). Moreover, even if review was not
barred and this claim was reviewed de novo, this claim would fail. The district
court did not err in conducting its own fact finding for purposes of applying the
guidelines cross-reference and determining the guidelines range. See United
States v. Hinojosa, 749 F.3d 407, 412-13 (5th Cir. 2014); United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005).
      Second, Samuels contends that the district court’s fact finding relevant
to the statutory minimum sentence applicable to count 14 violated his Fifth
Amendment right to due process and Sixth Amendment right to a trial by jury.
Even if Samuels did not waive review of this claim by failing to raise it in the
original appeal, see United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008),
this claim fails. Almendarez-Torres v. United States, 523 U.S. 224, 239-47
(1998), which remains binding precedent post-Alleyne, permitted the district
court to find that Samuels had two convictions for use of fire to commit
obstruction of justice and was therefore subject to a higher statutory minimum
term of imprisonment. See 18 U.S.C. § 844(h); see United States v. Wallace,
759 F.3d 486, 497 (5th Cir. 2014). Based on the foregoing, Samuels’s claim of
ineffective assistance of counsel at resentencing is moot because the
aforementioned claims fail even under de novo review.
      The judgment of the district court is AFFIRMED.




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