United States v. Hickman

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS November 21, 2005 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk Nos. 03-20839, 03-20840 Summary Calendar UNITED STATES OF AMERICA, Plaintiff - Appellee v. JOYCE LEE HICKMAN, a/k/a Joyce Saunders, Defendant - Appellant Appeals from the United States District Court for the Southern District of Texas (00-CR-250) ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before JOLLY, DAVIS, and JONES, Circuit Judges. PER CURIAM:* In our previous opinion in this case, we affirmed Defendant- Appellant Hickman’s conviction and sentence. See United States v. Hickman, Nos. 03-20839 and 03-20840, 374 F.3d 275 (5th Cir. 2004). Following our judgment, Hickman filed a petition for certiorari, in which she challenged for the first time the constitutionality of * 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. -1- the Sentencing Guidelines as applied to her. The Supreme Court granted Hickman’s petition for certiorari, vacated our judgment, and remanded the case to this court for further consideration in light of United States v. Booker, 125 S. Ct. 738 (2005). We now reconsider the matter in light of Booker and decide to reinstate our previous judgment affirming Hickman’s conviction and sentence. Because Hickman did not raise any Booker-related challenges to her sentence until her petition for certiorari, we will not review her claim absent extraordinary circumstances. United States v. Taylor, No. 03-10167, 409 F.3d 675, 676 (5th Cir. May 17, 2005). Our cases make it clear that an argument not raised in appellant’s original brief as required by FED. R. APP. P. 28 is waived.2 Appellant argues that based on remarks made by the trial judge at sentencing, she can satisfy the plain-error test discussed in United States v. Mares, 402 F.3d 511, 520-22 (5th Cir. 2005). Even if appellant can satisfy the plain error test, she has not met the even more exacting test required to show the presence of extraordinary circumstances, which requires appellant to show a “possibility of injustice so grave as to warrant disregard of usual 2 See Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 (5th Cir. 2004)(party waived argument not included in original brief to panel); Yokey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). See also 16A C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3974.1 at 501 (1999)(issues not raised in appellant’s initial brief normally will not be considered by the court); FED. R. APP. P. 28 (a)(9)(A) which states that an appellant’s brief must contain “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” -2- procedural rules.” McGee v. Estelle, 722 F.2d 1206, 1213 (5th Cir. 1984) (footnote omitted). For the reasons stated above, our prior disposition remains in effect, and we REINSTATE OUR EARLIER JUDGMENT affirming Hickman’s conviction and sentence. -3-