United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 24, 2005
Charles R. Fulbruge III
Clerk
No. 04-10516
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERALD HENRY BOWERMAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:00-CR-4-4-R
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Before GARZA, DEMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Gerald Bowerman appeals from resentencing following remand
of his conviction for conspiracy to possess with intent to
distribute and distribution of methamphetamine. This court had
remanded the portion of Bowerman’s sentence that imposed a two-
level adjustment for possession of a firearm in the absence of
evidence to support the adjustment.
*
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this opinion should not be published and is not precedent except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. 04-10516
-2-
Bowerman argues that the district court exceeded the scope
of this court’s remand order by permitting the Government to
introduce new witness testimony at the resentencing hearing.
We review whether the district court properly interpreted
the scope of this court’s remand order de novo. See United
States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004). The law of the
case doctrine prohibits courts from relitigating matters that
have previously been decided. See id. As a corollary to the law
of the case doctrine, the mandate rule provides that the district
court comply on remand with the appellate court’s mandate by
addressing “only those discrete, particular issues identified by
the appeals court for remand.” See id. at 320-21.
In this court’s opinion on remand, the panel expressly noted
that the Government failed to present any evidence either in the
trial transcript or in the presentence report that established
that Bowerman possessed a firearm in connection with his drug
offense. Neither in this court’s opinion nor in its mandate did
it direct the district court to conduct additional fact-finding
on this issue. The Government fails to offer any explanation for
why this evidence could not have been presented to this court in
the first appeal or in a motion for reconsideration. See United
States v. Becerra, 155 F.3d 740, 754 (5th Cir. 1998). The
Government’s failure to meet its burden of proof is not a
cognizable exception to the law of the case doctrine. See Lee,
358 F.3d at 320 n.3. Accordingly, the district court’s
No. 04-10516
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consideration of the additional evidence is barred by the law of
the case doctrine and the mandate rule. See Becerra, 155 F.3d at
754. Bowerman’s challenge to the constitutionality of the
firearm adjustment in light of Blakely v. Washington, 124 S. Ct.
2531, 2543 (2004), is moot in light of this determination.
Accordingly, the sentence of the district court is VACATED and
REMANDED. The district court is instructed to resentence
Bowerman without the adjustment for firearm possession.
VACATED and REMANDED.