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Click here for the full text of this decision FACTS:Timothy S. Lee challenges his sentence imposed upon remand, arguing that the mandate issued by this court in United States v. Lee, 310 F.3d 787 (5th Cir. 2003) (Lee I), precluded the district court from upwardly departing at resentencing pursuant to �4A1.3 of the U.S. Sentencing Guidelines Manual. Lee asserts in the alternative that the district court’s upward departure was premised on an erroneous determination that Lee’s criminal history category did not adequately reflect the seriousness of his criminal history or the likelihood that he would reoffend. HOLDING:Affirmed. Lee asserts that the mandate rule, a corollary of the law of the case doctrine, prohibited the district court from reconsidering and imposing a discretionary upward departure pursuant to U.S.S.G. �4A1.3. To determine whether the district court’s actions on remand complied with the mandate rule, this court must determine the scope of its mandate in the opinion vacating Lee’s sentence and remanding the matter for resentencing. The court adheres to the view that, as a general rule, only those discrete, particular issues identified by the appeals court for remand are properly before the resentencing court. Nothing in this court’s mandate in Lee Iexplicitly required or precluded the district court’s consideration on remand of a discretionary upward departure pursuant to U.S.S.G. �4A1.3. The particular mandate at issue directed the district court to review Lee’s state court indictment to ascertain whether Lee’s prior conviction for UUMV was a crime of violence, in light of this court’s en banc opinion in United States v. Charles, 301 F.3d 309 (5th Cir. 2002), and to resentence Lee in accordance with its opinions in Lee Iand in Charles. Relying primarily on this court’s decision in United States v. Marmolejo, 139 F.3d 528 (5th Cir. 1998) ( Marmolejo II), Lee contends that the mandate restricted the district court to considering only whether his unauthorized use of a motor vehicle was a crime of violence within the meaning of �4B1.2 and its accompanying commentary as this court instructed in Charles � “no more, no less.” According to Lee, once the district court decided on remand that his state court indictment did not support such a finding, the district court could do nothing other than subtract the crime of violence enhancement from Lee’s sentencing calculus, reducing Lee’s total offense level score from 19 to 13, and impose a sentence within the resulting guidelines range of 33 to 41 months commensurate with the lower offense level score and Lee’s CHC of VI. The court disagrees. The district court relied on the availability of the crime of violence enhancement in order to meet the guidelines’ objectives of, among other things, deterrence and protection of the public. Without the benefit of this court’s en banc decision in Charles, the district court properly applied then-controlling circuit precedent holding that UUMV is a crime of violence. The court finds that the district court did not abuse its discretion by upwardly departing from Lee’s sentencing range of 33-41 months to a term of 65 months of imprisonment. OPINION:Stewart, J.; Garwood, Jones and Stewart, JJ.

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