* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10491

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ENRIQUE ELIZONDO, also known as Rickey Elizondo

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:03-CR-395-3

Before GARWOOD, WIENER and GARZA, Circuit Judges.

PER CURIAM:*

Enrique Elizondo was convicted of a jury of conspiracy to commit mail

fraud and was sentenced to serve 37 months in prison. The district court also

imposed a $172,276 restitution order,to be paid jointly and severally by Elizondo

and his codefendants. Id. On direct appeal, Elizondo challenged his sentence

of imprisonment and the restitution order pursuant to the intervening decision

in United States v. Booker, 543 U.S. 220 (2005). United States v. Garza, 429 F.3d

United States Court of Appeals

Fifth Circuit

F I L E D

May 23, 2008

Charles R. Fulbruge III

Clerk
No. 07-10491

1We noted that “Elizondo did not object below to the order of restitution or

to the district court’s use of the MVRA. His claim is, therefore, reviewable only

for plain error.” Id. at 169. However, we held that Elizondo had properly

preserved his Booker claim as to the length of his confinement sentence by his

objection below under Blakely v. Washington, 124 S.Ct. 2531 (2004), to the

district court’s various upward adjustments to his base offense level. Garza at

170-71. Elizondo did not seek rehearing or certiorari; a co-defendant’s

application for certiorari was denied. Garza v. United States, 126 S.Ct. 1444

(2006).

2

165, 168 (5th Cir. 2005). This court remanded the imprisonment portion of

Elizondo’s sentence but held that under the plain error standard, Booker did not

implicate the restitution order or the Mandatory Victims Restitution Act

(MVRA) and we accordingly rejected his complaints as to the restitution ordered

(and the MVRA). Garza, 429 F.3d at 169-71.1

On remand, Elizondo challenged the relevant conductfindings, both in the

context of the term of imprisonment and the restitution order. The district court

held that it was barred by the mandate of this court from reviewing the

restitution order; it also reimposed the same 37-month term of imprisonment.

On appeal from this first resentencing, this court held that the district court

erred in concluding that the mandate rule barred it from considering Elizondo’s

relevant conduct as it related to the prison term to be imposed. United States

v. Elizondo, 475 F.3d 692, 695-96 (5th Cir.), cert. denied, 127 S. Ct. 1865 (2007).

We also expressly held, however, that the district court properly concluded that

it was barred from revisiting the restitution order under the mandate rule. Id.

at 696-97. We remanded the case “for resentencing in accordance with this

opinion.” Id. at 697.

Atthe second resentencing, Elizondo had served his complete prison term,

and defense counsel and the district court agreed that Elizondo would receive no

relief from reconsideration of the relevant conduct as it related to his prison

term. Elizondo repeated his assertion, however, that he was entitled to a

reduction in his restitution order to the loss directly attributable and reasonably
No. 07-10491

3

foreseeable to him which he contended was only $500. The district court rejected

that contention, again finding that it was barred from reconsideration of the

restitution order by the mandate rule. The court reimposed the original 37-

month term of imprisonment and again ordered restitution of $172,276, to be

paid jointly and severally.

On the third direct appeal of this case, Elizondo again asserts that he is

entitled to reduction of his restitution order to the limited quantity he believes

was reasonably foreseeable to him. He asserts that Booker is implicated by the

MVRA because restitution is a component of sentencing that is based on relevant

conduct findings determined under the Sentencing Guidelines. However, the

district court could not reconsider the applicability of Booker to the MVRA at

either ofthe resentencing proceedings pursuantto the mandate rule. See United

States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004). Although Elizondo does not

discuss the mandate rule in any depth, he asserts conclusionally thatthis court’s

original ruling on the issue “is clearly erroneous and works a manifestinjustice,”

a recognized exception to the mandate rule. See United States v. Matthews, 312

F.3d 652, 657 (5th Cir. 2002). Because Elizondo did not raise this exception

during the first resentencing proceedings, it is in fact barred by the mandate

rule. See Lee, 358 F.3d at 321. Additionally, Elizondo’s conclusional assertion

is insufficientto establish a manifestinjustice, particularly in light of the several

circuit court holdings that Booker is not implicated by the MVRA.

Elizondo also asserts that the restitution order violated his rights under

the Fifth Amendment because it exceeded the amount necessary to compensate

victims for losses caused by his conduct. He maintains that he raised this issue

in his prior two appeals, but neither the district court nor this court addressed

the issue explicitly in the prior opinions. Under the mandate rule, the issue was

at least implicitly rejected in the prior appeals and is thus barred from review.

See Lee, 358 F.3d at 321. As Elizondo has not established that either of the
No. 07-10491

4

claims he raises in this appeal are cognizable, his sentence and order of

restitution are AFFIRMED.