United States v. Hickman , 159 F. App'x 553 ( 2005 )

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this opinion should not be published and is not precedent except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.
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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.”
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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.
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