* Local Rule 47.5 provides: "The publication of opinions that

have no pre cedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-10131

(Summary Calendar)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERIC ANTHONY THOMAS,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

(5:93-CR-13-01)

(August 22, 1995)

Before GARWOOD, WIENER and PARKER, Circuit Judges.

WIENER, Circuit Judge: *

Defendant-Appellant Eric Anthony Thomas appeals the sentence

imposed by the district court on remand from this court of Thomas'1 U nited States v. Thomas

, No. 93-1720 (5th Cir. Nov. 15,

1994) (copy attached) ( Thomas I ).

2 885 F.2d 1240 (5th Cir. 1989), c ert. denied

, 494 U.S. 1079

(1990).

3 481 U.S. 736 (1987).

4 Thomas , slip op. at 4.

5 Id. at 11.

2 first appeal in this matter. 1 In T homas I , a panel of this court

determined that Thomas' original sentenc ing violated the Double

Jeopardy Clause of the Fifth Amendment, relying on United States v.

Marroquin 2 and Ray v. United States

, 3 and remanded the case to the

district court for resentencing. In so doing, the Thomas I panel

stated that the government will elect "under which of the three

c onvictions Thomas should be sentenced." 4 Again, in its

conclusion, the panel in Thomas I stated that the matter was

remanded to the district court for resentencing on "the count"

elected by the government. 5

On remand, the government elected to proceed to sentencing on

Counts 2 and 3 of Thomas' indictment. The district court ordered

the government to file an "Amended Election of Count" because the

government's "Election of Count" did not comply with our mandate.

The government nevertheless argued that its election to proceed on

Counts 2 and 3 was pr oper and requested a hearing on the matter.

After conducting such a hear ing, the district court allowed the

government to proceed to sentencing on Counts 2 and 3, after which

Thomas was sentenced on those counts. This appeal followed.

At the hearing in questio n the government argued S Q and the6 Id. at 4.

3

district court accepted SQ that our statement in Thomas I directing

the government to "elect a count" should have been worded "counts,"

characterizing the singular statement in the opinion as a

ministerial error. Thomas, of course, contended that the wording

of our opinion in Thomas I was "clear in permitting the election as

to a single count." The issue before this panel in the instant

appeal is not what the Thomas I panel could have done but what it

did, for this panel is bound by stare decisis and the law of the

case doctrine to follow Thomas I

.

Not once but twice the Thomas I opinion employed plain, clear

and unequivocal language of the singular in remanding the case for

resentencing. No motion was filed by either party for correction

or clarification. Like this panel, the government and the district

court are bound by the clear and unambiguous wording of Thomas I

,

which instructed the government to select a single conviction upon

which to proceed at resentencing. The government and the district

court failed to comply, however, leaving us no choice but to remand

again for resentencing.

For the forego ing reasons, we again vacate Thomas' sentence

and remand fo r resentencing, at which time "the government will

elect under which [one and only one] of the three convictions

Thomas should be se ntenced." 6 And the district court shall

resentence Thomas on the single conviction select ed by the

government.

VACATED and REMANDED for resentencing.