United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 26, 2004

Charles R. Fulbruge III Clerk No. 03-21063 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TONY RAY WASHINGTON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-829-ALL --------------------

Before JOLLY, DAVIS, and GARZA, Circuit Judges.

PER CURIAM:*

Tony Ray Washington appeals the sentence imposed on remand

for resentencing following his conviction for being a felon in

possession of a firearm. He argues that: the sentence imposed

by the district court violated his due process rights because the

sentence was vindictive, the district court erred by adding a

six-level increase to his total offense level based on facts not

proven at trial nor stipulated to by him, the district court

erred in denying his motion to suppress the evidence, the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-21063 -2-

district court erred by adding a four-level increase to his total

offense level pursuant to U.S.S.G. § 2K2.1(b)(5), and the

evidence was insufficient to support his conviction.

Washington may not bring a vindictiveness claim because his

sentence on remand is lower than his original sentence. See

United States v. Moore,

(5th Cir. 1993).

Washington’s argument regarding the increase in his total offense

level, which is based on the Supreme Court’s decision in Blakely

v. Washington,

(2004), is foreclosed by

this court’s decision in United States v. Pineiro,

(5th Cir. 2004), petition for cert. filed, (U.S. July 14,

2004) (No. 03- 30437). The “law of the case” doctrine precludes

review of his remaining arguments. See United States v. Becerra,

(5th Cir. 1998). Accordingly, the judgment is

AFFIRMED.