                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 19, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 03-10511
                           Summary Calendar



UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

THOMAS REEDY, JANICE REEDY

                     Defendants - Appellants

                        --------------------
          Appeals from the United States District Court
                for the Northern District of Texas
                      USDC No. 4:00-CR-54-1-Y
                     USDC No. 4:00-CR-54-2-Y
                        --------------------

Before KING, Chief Judge, and SMITH and GARZA, Circuit Judges.

PER CURIAM:*

     Thomas and Janice Reedy appeal the sentences imposed

following remand to the district court for resentencing.        See

United States v. Reedy, 304 F.3d 358 (5th Cir. 2002).       The Reedys

owned and operated a company that provided computerized credit

card verification services to webmasters whose websites contained

adult and child pornography.    Janice Reedy (Janice) was

resentenced to 168 months of imprisonment and three years of

supervised release on each of 11 counts, with the sentences to

     *
       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this opinion should not be published and is not precedent except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. 03-10511
                                -2-

run concurrently.   Thomas Reedy (Thomas) was resentenced to 180

months of imprisonment and three years of supervised release on

each of 12 counts, with the sentences of imprisonment to run

consecutively to the extent necessary to produce a life sentence.

     As a threshold issue, we must determine whether we have

jurisdiction over Janice’s appeal.    This matter was remanded to

the district court for a determination of excusable neglect due

to the late filing of the notice of appeal.    On remand, the

district court denied the motion for an extension of time to file

the notice of appeal, holding that Janice had not shown excusable

neglect.   Janice argues that this decision was an abuse of

discretion because her attorney filed the notice of appeal after

Thomas was sentenced due to the attorney’s belief that the cases

remained consolidated following remand.   The district court found

that counsel’s failure to timely file amounted to mere

inadvertence because counsel had been provided with written

notice of the time for appealing and had signed this notice,

indicating his understanding of it.   Under these circumstances,

the district court did not abuse its discretion.    See Pioneer

Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380,

392 (1993).   Because Janice’s notice of appeal is untimely, we

dismiss her appeal for lack of jurisdiction.    See United States

v. Rodriguez, 278 F.3d 486, 489-90 (5th Cir. 2002).

     Thomas seeks to revisit several issues that were decided in

his prior appeal or that are beyond the scope of this court’s
                             No. 03-10511
                                  -3-

remand for resentencing.    In particular, Thomas challenges the

district court’s determination of the amount of pecuniary gain,

the relevant unit of prosecution, and the denial of his motion

for a judgment of acquittal based on his contention that the

district court impermissibly shifted the burden of proof to the

defense.    Because these issues are barred by the law of the case,

we do not address them.     See United States v. Matthews, 312 F.3d

652, 657 (5th Cir. 2002).

     Thomas also raises a number of issues for the first time on

appeal.    Our review of these issues is for plain error.   To

establish plain error, Thomas must show:    (1) there is an error,

(2) that is clear or obvious, and (3) that affects his

substantial rights.    United States v. Calverley, 37 F.3d 160,

162-64 (5th Cir. 1994) (en banc) (citing United States v. Olano,

507 U.S. 725, 731-37 (1993)).    Thomas asserts that his Sixth

Amendment rights were violated pursuant to Blakely v. Washington,

124 S. Ct. 2531 (2004), because his sentence was increased based

on an amount of pecuniary gain found by the district court rather

than the jury.    Thomas filed his brief prior to the Supreme

Court’s decision in United States v. Booker, 125 S. Ct. 738

(2005).    In light of Booker, this error is clear and obvious.

However, Thomas has not shown that the error affected his

substantial rights because, although the district court may have

expressed sympathy at the length of his sentence, the court did

not indicate that it would have sentenced Thomas differently
                            No. 03-10511
                                 -4-

under an advisory guidelines scheme.    See United States v.

Creech, 408 F.3d 264, 272 (5th Cir. 2005).    Rather, the court

stated that the sentence was appropriate under the facts.      Thomas

has not established plain error under Booker.    United States v.

Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), petition for cert.

filed (Mar. 31, 2005) (No. 04-9517).

     Thomas also asserts for the first time on appeal that the

district court erred by imposing consecutive sentences and by

failing to consider the sentencing factors in 18 U.S.C.

§ 3553(a).    The district court imposed consecutive sentences

pursuant to U.S.S.G. § 5G1.2(d), and it stated that it found no

reason to depart from the guidelines and that the law was

vindicated by the sentence.    Thomas has not established plain

error with respect to the imposition of consecutive sentences.

See United States v. Izaguirre-Losoya, 219 F.3d 437, 439-42 (5th

Cir. 2000).

     Thomas also contends that his sentence of life imprisonment

violates the Eighth Amendment.    He asserts that he is less

culpable than the creators or distributors of child pornography

and that his sentence is disproportionate to his offense.      Thomas

also asserts that the credit card verification services he

provided were authorized by the legislation Congress passed

requiring webmasters to use credit card verification services to

distribute adult pornography.    In addition to the ten counts of

transporting images of minors engaged in sexually explicit
                           No. 03-10511
                                -5-

conduct, Thomas also was convicted of one count of conspiracy to

transport such images and one count of possession of child

pornography.   Although Thomas has no prior criminal convictions,

he has pointed to no authority that clearly establishes that the

imposition of consecutive sentences under these circumstances

renders his sentence grossly disproportionate to his offense.

Accordingly, he has not established plain error.     See Olano,

507 U.S. at 734; Harmelin v. Michigan, 501 U.S. 957 (1991)

(holding mandatory sentence of life imprisonment without parole

for possession of 650g of cocaine did not violate the Eighth

Amendment).

     Thomas argues that the district court erred in resentencing

him under 18 U.S.C. § 2252 based on ten different images.    He

asserts that the Government failed to prove the number of

websites that contained the images.   The superseding indictment

listed each image and the website from which it was obtained.      At

trial, the investigating officer testified regarding each image

and the website from which it was obtained.   The district court

sentenced Thomas based on its finding that ten different websites

were involved in the offense, and it chose one count from each of

those websites on which to sentence Thomas.   In his prior appeal,

Thomas argued that he should have been sentenced based only on

the ten websites that contained child pornography.    See Reedy,

304 F.3d at 365 n.5.   Thomas has not established that the

district court clearly erred in resentencing him for ten counts.
                          No. 03-10511
                               -6-

     As the Government concedes, Thomas has established plain

error with respect to the 180-month sentence he received for

count 89 (possession of child pornography).   The statutory

maximum for this offense is five years of imprisonment.

18 U.S.C. § 2252A(b)(2) (2000).   Accordingly, Thomas’s sentence

on Count 89 is vacated, and the matter is remanded to the

district court for resentencing on this count.   The remainder of

Thomas’s sentence is AFFIRMED.

     APPEAL DISMISSED AS TO JANICE REEDY; THOMAS REEDY’S SENTENCE
     ON COUNT 89 IS VACATED AND REMANDED TO THE DISTRICT COURT
     FOR RESENTENCING; THE REMAINDER OF THOMAS REEDY’S SENTENCE
     IS AFFIRMED.
