* 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that this opinion should not be published and is not precedent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.

United States Court of Appeals

Fifth Circuit

FILED

May 21, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-20978

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FLORITA BELL GRIFFIN; JOE LEE WALKER,

Defendants-Appellants.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-00-CR-379-1

--------------------

Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM:*

Florita Bell Griffin and Joe Lee Walker appeal from their

resentencing following our remand of this case. United States v.

Griffin, 324 F.3d 330, 365-68 (5th Cir. 2003). In our prior

opinion, we vacated their sentences and remanded for resentencing

because the district court had erroneously concluded that the

offense involved more than one bribe for the purpose of the

application of U.S.S.G. § 2C1.1(b)(1) and because it had

miscalculated the value of the benefit received from the offense
No. 03-20978

-2-

for the purpose of the application of U.S.S.G. § 2C1.1(b)(2). 

Id. at 365-67. 

We also questioned the propriety of the award of

restitution. Id. at 367-68. This court remanded the case and

directed the district court to “conduct a hearing to determine

[Kenneth] Mitchell’s status as a ‘direct and proximate’ victim,’

and the amount of restitution that [was] ‘attributable to the

specific conduct supporting the offense of conviction.’” Id. at

368.

Walker’s sole argument on appeal is that the district court

erred in failing to award a two-level reduction for his minor

role in the offense. Walker was not awarded a reduction for his

minor role in the offense at his first sentencing, and the issue

was not raised in Walker’s first appeal. Id. at 347-68. Walker

has waived the issue. See United States v. Marmolejo, 139 F.3d

528, 530-31 (5th Cir. 1998); Eason v. Thaler, 73 F.3d 1322, 1329

(5th Cir. 1996).

Griffin avers that the district court exceeded this court’s

mandate when it recalculated her base offense level using the

money-laundering statute. She also contends that the district

court exceeded this court’s mandate by making new findings with

regard to the amount of restitution. Griffin maintains that the

only issues before the court were whether the credit card charges

could be included in the restitution calculation and whether

Mitchell was a proximate victim. 
No. 03-20978

-3-

Making the changes in Griffin’s sentence as required by this

court on remand, i.e., that the offense involved only one bribe

and adjusting the value of the benefit received from the offense,

resulted in the offense level for the money-laundering count of

conviction being higher than the offense level for the bribery

conviction. Thus, under the grouping rules, the applicable

offense level was the offense level for money laundering. 

U.S.S.G. §§ 3D1.3(a), 2S1.1, 2C1.1. Moreover, the calculation of

Griffin’s sentence under the money-laundering guideline was not

an issue that was forgone by the original appeal. Rather, the

district court followed this court’s mandate and made the changes

in her sentence. Marmolejo, 139 F.3d at 531.

With regard to Griffin’s challenge to the restitution order,

Griffin does not contend that the district court erred in finding

that Mitchell was a “proximate victim.” Nor does she contend

that the specific amounts that the district court found to be

attributable to the offense conduct were wrong. Accordingly, she

is deemed to have abandoned the issues on appeal. Yohey v.

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

As the district court observed, this court, by directing it

to hold a hearing to determine whether Mitchell was a “proximate

victim” and whether he was entitled to restitution, did not limit

the district court to hear new evidence with regard to the losses

sustained by Mitchell as a result of the offense conduct. 

Rather, full consideration of the restitution issue was necessary
No. 03-20978

-4-

to implement the letter and spirit of this court’s mandate. 

United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002),

cert. denied, 538 U.S. 938 (2003). 

In addition, the law-of-the-case doctrine does not apply

where the evidence at the subsequent proceeding is substantially

different. Id. Here, different evidence was produced during a

proceeding authorized by this court’s mandate. This was not a

case where this court did not leave the issue open for decision

or did not authorize the district court to consider additional

evidence. United States v. Becerra, 155 F.3d 740, 754 (5th Cir.

1998). Given the foregoing, the judgment of the district court

is AFFIRMED. 

AFFIRMED.