United States v. Spooner

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 16, 2004
Charles R. Fulbruge III
Clerk
No. 04-30255
c/w No. 04-30292
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMMETT SPOONER, JR.,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Middle District of Louisiana
USDC No. 00-CR-145-ALL-D
--------------------
Before DAVIS, SMITH and DENNIS, Circuit Judges
PER CURIAM:*
Emmett Spooner, Jr., appeals his sentence of thirty-three
months of imprisonment and three years of supervised release
imposed on resentencing. Spooner was convicted by a jury of three
counts of mail fraud and three counts of wire fraud.
Spooner contends that the district court erred by denying
relief on his motion, challenging the indictment and the grand jury
proceedings. Spooner has not shown error in the district court’s
reason for dismissing his motion. See United States v. Lee, 358
*
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this opinion should not be published and is not precedent except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. 04-30255 c/w No. 04-30292
-2-
F.3d 315, 321, 323 (5th Cir. 2004); United States v. Cothran, 302
F.3d 279, 286 n.7 (5th Cir. 2002).
Spooner challenges the district court’s denial of his motion
for a continuance of the resentencing hearing. He asserts that he
would have presented evidence concerning the prior convictions that
were used to determine his criminal history category.
Spooner’s reasons for requesting a continuance concerned
issues that exceeded the scope of this court’s remand opinion. See
Lee, 358 F.3d at 321, 323; United States v. Marmolejo, 139 F.3d
528, 531 (5th Cir. 1998). Spooner has not shown that the denial of
a continuance caused him prejudice. United States v. Olaniyi-Oke,
199 F.3d 767, 771 (5th Cir. 1999). The denial of Spooner’s motion
for a continuance was not an abuse of discretion. Id.Spooner contends for the first time on appeal that prior to
his resentencing, the district court did not grant him the right of
allocution. Spooner asserts that if he had been allowed to
allocute, he would have asked the district court to reconsider the
use of his prior convictions in determining his criminal history
category, he would have challenged the restitution order, and he
would have requested a downward departure based on his bi-polar
disorder.
We review Spooner’s argument for plain error. United States
v. Reyna, 358 F.3d 344, 351 (5th Cir.) (en banc), cert. denied, 124
S. Ct. 1626 (2004). Although the denial of the right to allocution
in the instant case was plain error that is presumed to have
No. 04-30255 c/w No. 04-30292
-3-
affected substantial rights, we decline to exercise our discretion
to correct the error because the error did not “‘seriously affects
the fairness, integrity or public reputation of judicial
proceedings.’” Id. at 352-53.
Spooner challenges the district court’s denial of his motion
for release pending appeal of the judgment on resentencing. We
rejected Spooner’s motion for release pending appeal of the
resentencing judgment initially and on reconsideration, and we will
not reopen what we have already decided. See United States v.
Phipps, 368 F.3d 505, 511 n.3 (5th Cir. 2004); United States v.
Spooner, No. 04-30255 (5th Cir. May 14, 2004 and June 8, 2004)
(unpublished).
Spooner asserts that the district court did not comply with
the remand opinion. He argues that the district court should have
resentenced him “as if [he] had not been sentenced (at all).” He
asserts that the district court should have addressed all of his
arguments concerning the use of his prior convictions, the
restitution award, and his reasons for mitigation of punishment.
“‘[O]nly those discrete, particular issues identified by the
appeals court for remand are properly before the resentencing
court.’” Lee, 358 F.3d at 321 (citation omitted). The district
court properly refused to consider the issues asserted by Spooner
that were not related to the U.S.S.G. § 3C1.1 issue specified in
the remand opinion. See id. at 321, 323.
No. 04-30255 c/w No. 04-30292
-4-
Spooner does not challenge in his initial brief the district
court’s finding on resentencing that the U.S.S.G. § 3C1.1 increase
applied for obstruction of justice increase was not clearly
erroneous. Accordingly, Spooner has abandoned any challenge to the
district court’s findings at resentencing. See United States v.
Narviz-Guerra, 148 F.3d 530, 537 n.3 (5th Cir. 1998) (issue that is
not briefed is abandoned). We do not consider Spooner’s challenge
to the district court’s U.S.S.G. § 3C1.1 findings which are raised
for the first time in Spooner’s reply brief. United States v.
Hoster, 988 F.2d 1374, 1383 (5th Cir. 1993).
Finally, Spooner asserts that his sentence was imposed in
violation of Blakely v. Washington, 124 S. Ct. 2531 (2004).
Spooner’s argument is foreclosed by United States v. Pineiro, 377
F.3d 464, 466 (5th Cir. 2004), petition for cert. filed, (U.S. July
14, 2004) (No. 04-5263).
Accordingly, the judgment of the district court is AFFIRMED.