United States v. Geary Mills , 620 F. App'x 343 ( 2015 )

Case: 14-41128 Document: 00513244691 Page: 1 Date Filed: 10/23/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
October 23, 2015
No. 14-41128 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
GEARY MOHAMMED MILLS,
Defendant–Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:10-CR-65-8
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Geary Mills was convicted of conspiracy to possess with intent to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 14-41128
distribute a controlled substance and possession of a firearm in furtherance of
a drug-trafficking crime, and we affirmed those convictions. See United States
v. Mills, 555 F. App’x 381, 382–88 (5th Cir.), cert. denied, 135 S. Ct. 140 (2014).
The district court entered a final order of forfeiture, which Mills appeals, claim-
ing that the district court lacked subject-matter jurisdiction. The government
moves to dismiss Mills’s appeal or for summary affirmance or, alternatively,
for an extension of time to file its brief.
This court must examine the basis of its jurisdiction, sua sponte if
necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). “Federal courts
have no jurisdiction under Article III § 2 of the Constitution unless a case or
controversy is presented by a party with standing to litigate.” Nevares v. San
Marcos Consol. Indep. Sch. Dist., 111 F.3d 25, 26 (5th Cir. 1997). As a general
matter, a party who is not aggrieved by a judgment does not have standing to
appeal it. See Ward v. Santa Fe Indep. Sch. Dist., 393 F.3d 599, 603 (5th Cir.
2004).
“A preliminary order of forfeiture is a final judgment as to the rights of
a defendant to forfeited property. In contrast, a final order of forfeiture deter-
mines the rights of third parties with respect to property a defendant has for-
feited.” United States v. de los Santos, 260 F.3d 446, 448 (5th Cir. 2001). A
preliminary order of forfeiture becomes final as to the defendant “[a]t sentence-
ing,” or it can become final before sentencing with the defendant’s consent.
FED. R. CRIM. P. 32.2(b)(4)(A); see United States v. Stone, 435 F. App’x 320,
321–22 (5th Cir. 2011).
Mills’s interest in the forfeited property was resolved by the preliminary
order of forfeiture, which became final as to him at sentencing. FED. R. CRIM.
P. 32.2(b)(4)(A); de los Santos, 260 F.3d at 448. Consequently, he no longer
had any interest in the property when the court entered the final order of
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No. 14-41128
forfeiture. See Stone, 435 F. App’x at 321–22; see also United States v. Petrie,
302 F.3d 1280, 1284 (11th Cir. 2002) (noting that “all post-sentencing activities
authorized by Rule 32.2 concern third-party interests”). Because the order did
not implicate Mills’s rights to the property, he lacks standing to appeal. See
de los Santos, 260 F.3d at 448. Mills makes some assertions that could be
liberally construed as a challenge to the preliminary forfeiture order, but we
do not consider them, because they were not raised in his opening brief. See
Morin v. Moore, 309 F.3d 316, 328 (5th Cir. 2002).
Accordingly, the motion to dismiss the appeal for want of jurisdiction is
GRANTED, and the appeal is DISMISSED. The government’s alternate
motions for summary affirmance or for an extension of time to file its brief are
DENIED as moot.
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