                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 October 5, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 06-10318
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

GREGORY HICKS,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:03-CR-336-3
                      --------------------

Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case following a remand

for resentencing, Gregory Hicks raises arguments that are

foreclosed by United States v. Johnson, 445 F.3d 793, 797-98 (5th

Cir.), cert. denied, 126 S. Ct. 2884 (2006), which held that the

sentencing guideline range should be determined in the same

manner as before United States v. Booker, 543 U.S. 220 (2005),

even though the sentencing court is not required to sentence

within that range, and by United States v. Matthews, 312 F.3d

652, 657 (5th Cir. 2002), which held that under the law of the

     *
       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this opinion should not be published and is not precedent except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. 06-10318
                               -2-

case doctrine, an issue of fact or law decided on appeal may not

be reexamined by the appellate court on a subsequent appeal.   The

Government’s motion for summary affirmance is GRANTED, and the

judgment of the district court is AFFIRMED.
