United States v. Griffin

* 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that this opinion should not be published and is not precedent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
F I L E D
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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-379-1
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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

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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.

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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

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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.

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