                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 15, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-20555
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JESUS LORENZO AYALA,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No.4:02-CR-36-3
                        --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Jesus Lorenzo Ayala appeals the sentence imposed following his

resentencing for his guilty plea conviction of aiding and abetting

in the possession with intent to distribute more than 100 kilograms

of marijuana and conspiracy to possess with intent to distribute

more than 100 kilograms of marijuana.    Ayala was sentenced to a

term of imprisonment of 108 months on each count, to be served

concurrently and to be followed by a five-year term 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this opinion should not be published and is not precedent except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.
                                No. 05-20555
                                     -2-

     Ayala argues that the district court’s finding of relevant

conduct by a mere preponderance of the evidence was a violation of

his rights under the Sixth Amendment and the Due Process Clause of

the Fifth Amendment.1    This court has determined that the district

court can make all factual findings relevant to a post-Booker2

guidelines sentence based on a preponderance of the evidence.

United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied,

126 S. Ct. 43 (2005).        Although Mares spoke only in terms of the

Sixth Amendment, it implicitly rejected Ayala’s Fifth Amendment

claim as well.    And our sister circuits having addressed that claim

have rejected it.     See United States v. Malouf, 466 F.3d 21, 27

(1st Cir. 2006); United States v. Garcia-Gonon, 433 F.3d 587, 593

(8th Cir. 2006); United States v. Vaugh, 430 F.3d 518, 525 (2d Cir.

2005).      The   district    court   did   not   err   in   employing   the

preponderance of the evidence standard.

     Ayala further argues that, even under the preponderance of the

evidence standard, the proof of drug quantity was insufficient

because Blevins could not testify as to the amount of marijuana

transported.

     Post-Booker, this court continues to review the district

court’s interpretation and application of the Guidelines de novo

and its factual findings for clear error.               United States v.


     1
       Generously construed, his first appeal to this court
raised this issue, preserving it for consideration here. See
United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998).
     2
         United States v. Booker, 543 U.S. 220 (2005).
                                   No. 05-20555
                                        -3-

Villanueva, 408 F.3d 193, 203 & n.9 (5th Cir.), cert. denied, 126

S. Ct. 268 (2005).      In the context of determining drug quantity for

sentencing purposes, a district court may consider estimates if

they are reasonable and based on reliable evidence.               United States

v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005).                  The district

court    used    the   extrapolation     method   in   inferring    that     Ayala

transported the same amount of drugs on each trip he made.                 If this

method is employed, there must be “sufficient reliable evidence

that    the    multiplier   used    by   the   district   court     .    .   .   is

representative of the [amount of drugs involved] . . . on each

trip.”     United States v. Cabrera, 288 F.3d 163, 170-73 (5th Cir.

2002).

       There     was   sufficient     reliable    evidence   from       Blevins’s

testimony and information about the truck for the district court to

find that Ayala transported and unloaded at least 384 kilograms of

marijuana on at least eight occasions in addition to transporting

the 384.7 kilogram load that resulted in his arrest.                    Thus, the

district court did not clearly err in holding Ayala responsible for

3,461.9 kilograms of marijuana.

       Ayala argues that the district court erred in not decreasing

his offense level based on his being a minor participant in the

offense.       In his initial objections to the PSR, Ayala argued that

he should receive a two-level reduction of his offense level based

on his minor role in the offense, and the district court overruled
                            No. 05-20555
                                 -4-

his objections.   Ayala did not appeal that ruling in the initial

appeal.

      Upon remand for resentencing, “[a]ll other issues not arising

out of this court’s ruling and not raised before the appeals court,

which could have been brought in the original appeal, are not

proper for reconsideration by the district court below.”     United

States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998).    The only

exceptions to this rule are: “(1) The evidence at a subsequent

trial is substantially different; (2) there has been an intervening

change of law by a controlling authority; and (3) the earlier

decision is clearly erroneous and would work a manifest injustice.”

United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002).

      Ayala failed to raise this argument in his initial appeal, and

he has not shown that his argument falls within any exception to

the limited remand rule.   This argument is not subject to review.

Id.

      AFFIRMED.
