IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-10066
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES CRAIN,
Defendant-Appellant.
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Appeal from the United States District Court for the
Northern District of Texas
(1:92 CR 045)
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September 21, 1995
Before GARWOOD, WIENER and PARKER, Circuit Judges.*
PER CURIAM:
Defendant-appellant Charles Crain (Crain) and Tony Watkins
(Watkins) were each charged in both counts of a two-count
indictment, count one of which charged conspiracy to possess
cocaine base with intent to distribute it and count two of which
charged possession of cocaine base with intent to distribute it.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular cases
on the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
Following a jury trial, both Crain and Watkins were convicted of
both counts. Watkins was then sentenced to 140 months on each
count, the sentences to run concurrently. Crain was sentenced to
262 months on each count, with the sentences to run concurrently.
Crain and Watkins each appealed to this Court.
In his appeal, Crain contended that the evidence was
insufficient to support his conspiracy conviction under count one,
that the evidence was insufficient to support his conviction of
possession with intent to distribute under count two, and that the
district court erred in its sentencing of Crain by double counting
his prior convictions in setting his base offense level and his
criminal history category. On September 19, 1994, this Court
issued its opinion in that appeal. United States v. Crain, 33 F.3d
480 (5th Cir. 1994). There, we affirmed Watkins' conviction and
sentence on both counts. We specifically affirmed Crain's
conspiracy conviction. We reversed Crain's possession conviction
as being not supported by sufficient evidence, and we vacated
Crain's sentence and remanded his case to the trial court for
resentencing. Id. at 488. Crain did not file a petition for
rehearing or a suggestion for rehearing en banc, and so far as we
are aware did not file a petition for writ of certiorari. The
mandate was issued on October 11, 1994. On January 6, 1995, the
district court, pursuant to our mandate, resentenced Crain on count
one, the conspiracy count which we had affirmed, to a term of
imprisonment of 175 months. Crain now again appeals to this Court.
Crain's sole contention on this appeal is that the evidence is
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insufficient to support his conspiracy conviction. This contention
was specifically considered and rejected by this Court on the prior
appeal. Id. at 485-486. Although a majority of the panel believed
that the question of the sufficiency of the evidence of conspiracy
was "a close one," we nevertheless specifically held that the
evidence of conspiracy was sufficient, and specifically affirmed
the conspiracy conviction. Id. at 486. The third judge on the
panel likewise voted to affirm the conspiracy conviction, and found
the evidence was sufficient to sustain it, but did not think that
the issue was even close. Id. at 488. This judge likewise
dissented from the holding of the panel majority that the evidence
was insufficient to support the possession conviction. Id. at 488-
89.1
In arguing that the evidence is insufficient to support his
conspiracy conviction, Crain refers only to the evidence introduced
at the only trial of this case, the very same evidence which was
before this Court on the prior appeal and which we found sufficient
to sustain the conspiracy conviction. There has been no subsequent
trial or proffer of evidence. Moreover, Crain does not claim that
there has been any change in the law since we affirmed the
conspiracy conviction, and indeed he cites no authority decided
subsequent to the earlier decision of this Court affirming his
conspiracy conviction. When the trial court resentenced Crain on
In reversing the possession conviction, the panel noted that
no instruction had been given respecting the possession count on
the theory of Pinkerton v. United States, 66 S.Ct. 1180 (1946).
Crain, 33 F.3d at 486 n.7.
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the conspiracy count in January 1995, it was acting pursuant to the
mandate of this Court. If Crain was dissatisfied with the ruling
of this Court on the prior appeal, his remedy was to seek rehearing
by the panel, or rehearing by the Court en banc, or review by the
United States Supreme Court. He did none of those things. Nor has
he sought to have the prior mandate of this Court recalled. It
would appear that this panel has absolutely no authority to
entertain in this appeal Crain's present attack on the sufficiency
of the evidence to support his conspiracy conviction. Moreover, it
is the settled law in this Circuit that one panel may not overrule
the decision of another, absent an intervening change in the law by
the en banc court or the United Sates Supreme Court.
Even if we were to apply the arguably more lenient or flexible
standard applicable to the law-of-the-case doctrine where there has
been a retrial following an earlier appeal, see Paul v. United
States, 734 F.2d 1064, 1066 (5th Cir. 1984), we would not grant
relief here. We certainly cannot say that the decision of the
prior panel was clearly erroneous, and there has been no change in
the law and the evidence is, of course, the very same. We also
note that in cases under 28 U.S.C. § 2255, "issues raised and
disposed of in a previous appeal from an original judgment of
conviction are not considered." United States v. Kalish, 780 F.2d
506, 508 (5th Cir. 1986). See also, e.g., Fuentes v. United
States, 455 F.2d 910, 911 (5th Cir. 1972) ("The appellants'
contention regarding the prosecuting attorney's jury argument was
raised by them and acted upon by this court during the course of
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their direct appeal. Therefore this contention is deemed
frivolous."); Smith v. United States, 420 F.2d 690 (5th Cir. 1970)
(same).
Accordingly, the judgment below is
AFFIRMED.
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