United States v. DeVita

145 F. App'x 60

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 18, 2005
• Docket: 03-10097
• Status: Unpublished

Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM: *

This court affirmed Priscilla DeVita’s conviction and sentence, following a jury trial, for conspiracy and aiding and abetting to take a motor vehicle resulting in serious bodily injury, in violation of 18 U.S.C. §§ 2, 371, 2119, and 2119(2). United States v. Devita, 86 Fed.Appx. 738 (5th Cir.2004) (unpublished). The Supreme Court granted DeVita’s petition for writ of certiorari and for leave to proceed informa pauperis; vacated our previous judgment; and remanded the case for further consideration in the light of United States v. Booker, 543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). DeVita v. United States, — U.S. -, 125 S.Ct. 1032, 160 L.Ed.2d 1017 (2005).

We requested supplemental briefs from the parties addressing the impact of Booker. DeVita filed a supplemental brief, claiming reversible plain error; citing new authority, discussed below, the Government moved to reinstate the prior affirmance of DeVita’s conviction and sentence, or, in the alternative, for an extension of time to file its supplemental brief. Other than advising the Government that she opposes its motion, DeVita did not respond.

DeVita did not raise Booker-error until her petition for writ of certiorari. Absent extraordinary circumstances, we will not consider a defendant’s Booker-related claims presented for the first time in a petition for writ of certiorari. United States v. Taylor, 409 F.3d 675, 676 (5th Cir.2005). DeVita has not demonstrated the requisite extraordinary circumstances. Therefore,

IT IS ORDERED that Appellee’s motion to reinstate prior affirmance of Appellant’s conviction and sentence is GRANTED.

IT IS FURTHER ORDERED that Appellee’s alternative request for an extension of time of 14 days from the court’s denial of the motion to reinstate prior affirmance of Appellant’s conviction and sentence to file its supplemental brief is DENIED AS MOOT.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.