IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-21016
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERALD PATRICK HARRIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-94-CR-231-2
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September 23, 1998
Before KING, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Gerald Harris appeals the refusal of the district court to
consider new issues of fact arising for the first time on remand
for resentencing. He argues that the district court should have
considered these new issues and that the failure to do so should
result in a reversal and vacation of his sentence.
There is no de novo resentencing following remand in all
cases in which resentencing has been ordered. United States v.
Marmolejo, 139 F.3d 528, 531 (5th Cir.), petition for cert.
*
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that this opinion should not be published and is not precedent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.
No. 97-21016
-2-
filed, (July 20, 1998)(No. 98-5372). The district court did not
err in holding that the only issues to be considered on
resentencing were those directed to it by this court. The other
errors argued by the appellant were not properly before the
sentencing court because they did not fall within the limits of
the remand order.
Appellant’s argument concerning a change in the law
regarding downward departures by sentencing courts is unavailing.
United States v. Koon, 518 U.S. 81 (1996). Koon authorizes a
sentencing court to make a departure from the Sentencing
Guidelines only if the facts are appropriate, and the opinion
sets out considerations for different circumstances. Id. at 92-
96. The district court acknowledged its ability to consider an
imperfect duress defense but held that it was improper to do so.
As result, this decision cannot be reviewed by this court. See
United States v. Brace, 145 F.3d 247, 263 (5th Cir. 1998)(en
banc); United States v. DiMarco, 46 F.3d 476, 477-78 (5th Cir.
1995).
The judgment of the district court is AFFIRMED.