IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50981

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

TERRY MICHAEL MILLER,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:06-CR-125-1

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Terry Michael Miller was convicted by a jury of two counts of assaulting

a federal officer in violation of 18 U.S.C. § 111(a) and (b). Miller was sentenced

to 240 months of imprisonment on both counts, with 60 months on count two to

run consecutively, for a total term of imprisonment of 300 months and three

years of supervised release on both counts to run concurrently. The district

court ordered Miller to pay $3,000 in restitution to the victim named in count

one. On appeal, we determined that the counts were multiplicitous for

United States Court of Appeals

Fifth Circuit

F I L E D

August 16, 2010

Lyle W. Cayce

Clerk

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.

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No. 09-50981

sentencing purposes, vacated and remanded Miller’s sentence to correct this

error, and affirmed the judgment in all other respects. United States v. Miller,

576 F.3d 530, 531 (5th Cir.), cert. denied, 130 S. Ct. 652 (2009).

At resentencing, the district court selected count one as the count of

conviction, sentenced Miller to 240 months of imprisonment and three years of

supervised release, and ordered him to pay a $25,000 fine and $3,000 in

restitution to the victim. Miller contends that the district court violated the

mandate rule by imposing the fine because the error identified by this court did

not affect the district court’s prior decision not to impose a fine.

“The only issues on remand properly before the district court are those

issues arising out of the correction of the sentence ordered by this court.” United

States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998). Our prior determination

that the counts were multiplicitous did not make the district court’s previous

finding that Miller was unable to pay a fine “newly relevant.” United States v.

Lee, 358 F.3d 315, 326 (5th Cir. 2004). Therefore, the district court violated the

mandate rule by imposing the fine. We exercise our discretion to correct this

forfeited error because it is clear or obvious, affects Miller’s substantial rights,

and “‘seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.’” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (alteration

in original) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).

Miller also challenges the district court’s calculation of the offense level

and the factual basis of the restitution award. Failure to raise an issue in an

initial appeal constitutes waiver of that issue “unless ‘there was no reason to

raise it in the initial appeal.’” United States v. Griffith, 522 F.3d 607, 610 (5th

Cir. 2008) (quoting Lee, 358 F.3d at 324). The specific offense-level calculations

that Miller complains of and the factual sufficiency of the restitution award were

germane to the first appeal, and our mandate did not “breathe[] life” into these

issues. See id. at 611. Therefore, Miller should have raised these issues in the

first appeal. See id. at 610-11. By failing to do so, Miller waived consideration

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of them. See id.; see also United States v. Rodriguez, 602 F.3d 346, 350 (5th Cir.

2010).

Miller contends that his 240-month sentence is substantively unreasonable

because it is more severe than other sentences imposed for violating § 111 and

because the district court gave undue weight to his criminal history. Miller was

convicted of attempting to run over law enforcement officers who were

attempting to execute a warrant. Miller’s extensive 32-year criminal history

included but was not limited to attempted murder, engaging in organized

criminal conduct, burglary of a building, several thefts, several burglaries of a

habitation, and family violence assault.

In light of Miller’s criminal history and pattern of recidivism, as well as

the district court’s finding that the maximum sentence was necessary to promote

the goals of the sentencing factors set forth in 18 U.S.C. § 3553(a), Miller has not

rebutted the presumption of reasonableness that applies to his within-guidelines

sentence. See United States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th

Cir. 2008). Thus, he has not shown error, plain or otherwise, with respect to the

240-month sentence.

The judgment of the district court is VACATED with respect to the

imposition of the fine and AFFIRMED in all other respects.

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