Case: 21-10347 Document: 00516190258 Page: 1 Date Filed: 02/03/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 3, 2022
No. 21-10347
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jeffrey Ndungi Sila,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-448-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Jeffrey Ndungi Sila was charged with two counts of theft of public
funds in violation of 18 U.S.C. §§ 2 and 641 (Counts I and III) and with
aggravated identity theft in violation of 18 U.S.C. §§ 2 and 1028A (Count II).
A jury convicted Sila on all counts, and he was sentenced to a total term of
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-10347 Document: 00516190258 Page: 2 Date Filed: 02/03/2022
No. 21-10347
imprisonment of 97 months. Sila appealed, and this court affirmed his
convictions on Counts I and II, but it reversed his conviction on Count III
and remanded for resentencing after concluding that there was insufficient
evidence to support the conviction. United States v. Sila, 978 F.3d 264, 270-
71 (5th Cir. 2020).
At resentencing, the only issue before the district court was the
calculation of the loss amount following this court’s reversal of Sila’s
conviction on Count III. Ultimately, the district court imposed an 87-month
term of imprisonment, and Sila filed a second appeal.
In his second appeal, Sila does not dispute the district court’s loss
calculation or any other matter related to resentencing. Instead, he raises
new substantive challenges to his convictions on Counts I and II, arguing
constructive amendment of the indictment and claiming that the evidence at
trial varied from the indictment in violation of his due process rights. He has
also filed a pro se motion seeking substitute counsel based on his current
counsel’s alleged failure to communicate with him.
The Government moves for summary affirmance, arguing that
because Sila’s arguments could have been raised in his first appeal, every
issue raised in his second appeal is forfeited by the law of the case doctrine
and the related waiver doctrine. See United States v. Lee, 358 F.3d 315, 320
(5th Cir. 2004); see also United States v. Stanford, 883 F.3d 500, 514 (5th Cir.
2018). Because the Government’s position “is clearly right as a matter of
law so that there can be no substantial question as to the outcome of the
case,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969),
summary affirmance is proper.
Accordingly, the motion for summary affirmance is GRANTED, and
the judgment of the district court is AFFIRMED. The Government’s
alternative motion for an extension of time is DENIED. Sila’s motion for
the appointment of substitute counsel is DENIED.
2