Case: 08-11179 Document: 00511098086 Page: 1 Date Filed: 05/03/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 3, 2010
No. 08-11179
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BARBARA HILDENBRAND; GERALD STONE,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-318:1
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Barbara Hildenbrand pleaded guilty, pursuant to a written plea
agreement, to two counts of defrauding the United States Department of
Housing and Urban Development (HUD), in violation of 18 U.S.C. § 1012. Her
husband, Gerald Stone, also pleaded guilty, pursuant to a written plea
agreement, to theft from an organization, in violation of 18 U.S.C. § 666, and tax
evasion, in violation of 26 U.S.C. § 7201. Following an unsuccessful appeal,
Hildenbrand and Stone returned to the district court to file pro se motions for a
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 08-11179 Document: 00511098086 Page: 2 Date Filed: 05/03/2010
No. 08-11179
new trial, pursuant to F ED. R. C RIM. P. 33 (as to Stone), to be resentenced to
probation (as to Hildenbrand), and jointly to dismiss the indictment, pursuant
to F ED. R. C RIM. P. 12(b)(3). It is from the denial of these post-judgment, post-
appeal motions that they now appeal.
Appellants argue that their motion to dismiss the indictment raised a
jurisdictional claim not previously asserted. They are incorrect. The arguments
are the same as ones that they had raised and this court had rejected in the prior
appeal, and are thus barred by the law-of-the-case doctrine. See United States
v. Hildenbrand, 527 F.3d 466, 474-78 (5th Cir.), cert. denied, 129 S. Ct. 437
(2008); see also United States v. Agofsky, 516 F.3d 280, 283 (5th Cir.), cert.
denied, 129 S. Ct. 64 (2008). Appellants contend that the law-of-the-case
doctrine does not apply because the prior panel decision was clearly erroneous
and works a manifest injustice, but their mere disagreement with the decision
is insufficient to meet the extraordinary manifest-injustice exception. See City
Public Serv. Bd. v. General Elec. Co., 935 F.2d 78, 82 (5th Cir. 1991).
Stone’s Rule 33 motion for a new trial and Hildenbrand’s motion for
resentencing challenged the validity of their convictions and sentences and, as
such, are barred by the waiver-of-appeal provisions contained in their plea
agreements. Appellants have abandoned, by failing to brief, their district-court
argument that the waivers were unenforceable due to the Government’s breach
of the plea agreements. See Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir.
2007); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the appeal is AFFIRMED. The Government’s alternative
motion for an extension of time in which to file a brief is DENIED as
unnecessary.
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