IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 02-60393
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERTHA J. WEEKLY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:98-CR-43-1-D
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January 24, 2003
Before JOLLY, JONES, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Bertha J. Weekly appeals her resentencing for conspiring to
possess cocaine base with intent to distribute and for aiding and
abetting the possession of cocaine base with intent to distribute.
She asserts that the case should be remanded for resentencing
because the district court did not realize that it had discretion
not to impose consecutive sentences under U.S.S.G. § 5G1.2(d).
Because Weekly did not object to the Government’s assertion of
mandatory consecutive sentences, review is for plain error. See
United States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995). As
*
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this opinion should not be published and is not precedent except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.
there is nothing in the record establishing that the court was
unaware of its discretion to impose concurrent sentences, there is
no plain error. See United States v. Vasquez-Zamora, 253 F.3d 211,
213 (5th Cir. 2001).
Weekly also contends that the district court erred in ruling
that it had no authority to revisit its earlier findings at her
initial sentencing hearing, regarding drug quantity and her role in
the offense, and that the district court erred by applying the
preponderance of the evidence standard in making those findings.
As authority for its refusal to revisit those issues, the district
court cited United States v. Hass, 199 F.3d 749, 753 (5th Cir.
1999) (holding that “all issues not arising out of the remand order
which could have been brought in the original appeal are not proper
for reconsideration by the district court below at resentencing”).
Weekly argues that Hass does not preclude consideration of “newly
relevant” issues that she lacked the incentive to challenge in her
first appeal. Even if we assume that the district court should
have reconsidered Weekly’s objections, any error is harmless,
because the district court’s findings concerning drug quantity and
Weekly’s role in the offense did not result in a sentence in excess
of the statutory maximum of twenty years imprisonment. See United
States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000), cert. denied,
531 U.S. 1177 (2001). Weekly challenges the district court’s use
of the preponderance of the evidence standard to calculate her
2
Sentencing Guidelines range in order to preserve the issue for
further review. She concedes that, under our precedent, the
district court used the proper standard for calculating the
appropriate guideline range. See Doggett, 230 F.3d at 165.
For the foregoing reasons, the sentence imposed by the
district court is
A F F I R M E D.
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