                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                      December 30, 2004

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 04-10059
                             Summary Calendar


                       UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                   versus

                               MILENA FLOYD,

                                                     Defendant-Appellant.



            Appeal from the United States District Court
                 for the Northern District of Texas
                       USDC No. 3:99-CR-19-4-L


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

           Milena Floyd was convicted by a jury of conspiracy to

commit mail fraud and aiding and abetting mail fraud in violation

of 18 U.S.C. §§ 371 and 1341.      Floyd argues that in view of Blakely

v. Washington, 124 S. Ct. 2531 (2004), the district court erred in

calculating her offense level using guideline factors that were

neither admitted by her not charged and found by a jury beyond a

reasonable doubt.       The Government argues that Floyd’s argument

challenging the enhancements to her offense level is barred by 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opinion should not be published and is not precedent except under the limited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.
law of the case doctrine.         “[O]nly those discrete, particular

issues identified by the appeals court for remand are properly

before the resentencing court.”         United States v. Marmolejo, 139

F.3d 528, 530 (5th Cir.1998) (“Marmolejo II”).         In Floyd’s first

appeal, we determined that the district court erred in finding that

Floyd had a prior conviction, vacated her sentence, and remanded

for resentencing in accordance with our opinion.        Floyd, 343 F.3d

at 373.   Therefore, the only issue before the district court on

remand was whether Floyd had a prior conviction which should be

included in determining her criminal history category.           Because

Floyd could not have challenged the sentencing enhancements in the

district court on remand for resentencing, she may not raise this

issue on appeal after remand.      See Marmolejo II, 139 F.3d at 530.

Therefore, we will not address Floyd’s argument that the district

court erred in calculating her offense level using guideline

factors that were not admitted by Floyd or charged and found by a

jury beyond a reasonable doubt.

          Floyd   argues   that    the    district   court   abused   its

discretion in denying her motion for a downward departure based on

the probation officer’s bad faith.        She argues that the district

court’s decision is reviewable because the court’s statements at

the sentencing hearing indicate that it did not believe that it had

the discretion to grant the motion.       The record of the resentencing

hearing indicates that the district court denied the motion because

it determined that Floyd did not present sufficient evidence to

                                    2
establish that the probation officer acted in bad faith, and not

based on the erroneous belief that it did not have the legal

authority to grant the motion.       Therefore, the district court’s

denial of Floyd’s motion for a downward departure is not re-

viewable.   See United States v. Buck, 324 F.3d 786, 797 (5th Cir.

2003).

            AFFIRMED.




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