United States v. Washington , 111 F. App'x 749 ( 2004 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                  October 26, 2004
    Charles R. Fulbruge III
    Clerk
    No. 03-21063
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    TONY RAY WASHINGTON,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. H-01-CR-829-ALL
    --------------------
    Before JOLLY, DAVIS, and GARZA, Circuit Judges.
    PER CURIAM:*
    Tony Ray Washington appeals the sentence imposed on remand
    for resentencing following his conviction for being a felon in
    possession of a firearm.    He argues that:   the sentence imposed
    by the district court violated his due process rights because the
    sentence was vindictive, the district court erred by adding a
    six-level increase to his total offense level based on facts not
    proven at trial nor stipulated to by him, the district court
    erred in denying his motion to suppress the evidence, 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    this opinion should not be published and is not precedent except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. 03-21063
    -2-
    district court erred by adding a four-level increase to his total
    offense level pursuant to U.S.S.G. § 2K2.1(b)(5), and the
    evidence was insufficient to support his conviction.
    Washington may not bring a vindictiveness claim because his
    sentence on remand is lower than his original sentence.     See
    United States v. Moore, 
    997 F.2d 30
    , 38 (5th Cir. 1993).
    Washington’s argument regarding the increase in his total offense
    level, which is based on the Supreme Court’s decision in Blakely
    v. Washington, 
    124 S. Ct. 2531
    , 2537 (2004), is foreclosed by
    this court’s decision in United States v. Pineiro, 
    377 F.3d 464
    ,
    465-66 (5th Cir. 2004), petition for cert. filed, (U.S. July 14,
    2004) (No. 03- 30437).   The “law of the case” doctrine precludes
    review of his remaining arguments.   See United States v. Becerra,
    
    155 F.3d 740
    , 752 (5th Cir. 1998).   Accordingly, the judgment is
    AFFIRMED.