IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 02-60393 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BERTHA J. WEEKLY,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Northern District of Mississippi USDC No. 2:98-CR-43-1-D _________________________________________________________________ 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,

(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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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,

(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,

(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,

(5th Cir. 2000), cert. denied,

(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,

.

For the foregoing reasons, the sentence imposed by the

district court is

A F F I R M E D.

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