United States v. Dale

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 16, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10228
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
LISA DALE,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS and PRADO, Circuit Judges.*
PER CURIAM:**
In our previous opinion in this case, we affirmed Defendant-
Appellant Dale’s conviction and sentence. See United States v.
Dale, No. 03-10228, 374 F.3d 321 (5th Cir. 2004). Following our
judgment, Dale filed a petition for rehearing and certiorari, in
*
This appeal is being decided by a quorum due to the
retirement of Judge Pickering. 28 U.S.C. § 46(d).
**
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this opinion should not be published and is not precedent except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.
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which she challenged for the first time the constitutionality of
the Sentencing Guidelines as applied to her. The Supreme Court
granted Dale’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 Dale’s conviction and sentence.
Because Dale did not raise any Booker-related challenge until
her petition for rehearing, we will not review her claim absent
extraordinary circumstances. United States v. Taylor, No.03-10167,
409 F.3d 675, 676 (5th Cir. 2005); see also United States v.
Hernandez-Gonzalez, 405 F.3d 206 (5th Cir. 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.3 United States v.
Mares, 402 F.3d 511, 520-22 (5th Cir. 2005). 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
3
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.”
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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 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 Dale’s
conviction and sentence.
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