* Pursuant to 5 TH C IR
. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR
. 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: * Enri que 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 $172,276restitution order, tobe paidjointly and severally by Elizondo and his codefendants. I d. On direct appeal, Elizondo challenged his sentence of imprisonment and the restitution order pursuant to the intervening decision in United Statesv. Booker, 543 U.S. 220 (2005). U nited Statesv. Garza, 429 F.3d United States Court of Appeals

Fifth Circuit 

### F I L E D May 23, 2008 Charles R. Fulbruge III ClerkNo. 07-10491

1We noted that “Elizondo did not object below to the order ofrestitution or to the district court’s use of the MVRA. His claim is, therefore, reviewable only for plain error.” I d

. 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 B lakely 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. G arza 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 tothe restitution ordered (and the MVRA). Garza, 429 F.3d at 169-71. 1 On remand, Elizondochallenged the relevant conduct findings, both in the context ofthe term ofimprisonment 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. U nited 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. I d. at 696-97. We remanded the case “for resentencing in accordance with this opinion.” Id. at 697. At thesecond resentencing, Elizondo had served his complete prison term, and defense counsel and the district court agreed that Elizondowould receive no relief from reconsideration of the relevant conduc t as it related to his prison term. Elizondo repeated his assertion, however, that he was entitled to a reduction in his restitution order tothe loss directly attributable and reasonablyNo. 07-10491

3 foreseeable to him which he contended wasonly $500. The district court rejected that contention, again finding that it was barred from rec onsideration 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 pursuant tothe mandate rule. SeeUnited States v. Lee

, 358 F.3d 315, 321 (5th Cir. 2004 ). Although Elizondo does not discuss the mandate rule in any depth, heassertsconclusionally that this court’s original ruling on the issue “isclearly erroneous and works a manifest injustice,”
a recognized exception to the mandate rule. See United Statesv. 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 insufficient toestablish a manifest injustice, 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 theNo. 07-10491

4 claims he raises in this appeal are cognizable, his sentence and order of restitution are AFFIRMED.