United States v. Milliken

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 4, 2002
• Docket: 01-21308
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-21308 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KATHERINE MINEYARD MILLIKEN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-445-ALL -------------------- October 30, 2002

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Katherine Mineyard Milliken was convicted pursuant to a

guilty plea of fraudulently using a Social Security number, in

violation of 42 U.S.C. § 408(a)(7)(B). This court affirmed

Milliken’s conviction, but vacated her sentence and remanded her

case to the district court for resentencing. See United States

v. Milliken, Nos. 00-21080 and 00-21021 (5th Cir. Oct. 24, 2001)

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-21308 -2-

(unpublished). After Milliken was resentenced, she filed the

instant appeal.

Milliken argues that her conviction must be reversed because

the district court failed to explicitly warn her about the

dangers and disadvantages of self-representation. Milliken

unsuccessfully raised the same argument in her original appeal.

On a second appeal following remand, the only issue for

consideration is whether the court below reached its final decree

in due pursuance of this court's previous opinion and mandate.

Burroughs v. FFP Operating Partners, L.P., 70 F.3d 31, 33 (5th

Cir. 1995). “Under the ‘law of the case’ doctrine, an issue of

law or fact decided on appeal may not be reexamined . . . by the

appellate court on a subsequent appeal.” See United States

v. Becerra, 155 F.3d 740, 752 (5th Cir. 1998).

Milliken does not challenge the manner in which the district

court resolved her sentence after remand. Accordingly, Milliken

has abandoned her only viable appellate issue. See Yohey

v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Milliken’s

argument regarding self-representation is unrelated to her

resentencing hearing and is beyond the scope of this appeal.

Moreover, the issue has already been considered and rejected by

this court. Milliken has not demonstrated that an exception to

the law-of-the-case doctrine exists that would allow this court

to re-examine her argument. We decline to consider it. No. 01-21308 -3-

The appeal is without arguable merit and is thus frivolous.

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because

the appeal is frivolous, it is DISMISSED. 5TH CIR. R. 42.2.

In lieu of filing an appellee's brief, the Government filed

a motion asking this court summarily affirm the district court's

judgment. The Government's motion is DENIED. However, the

Government need not file an appellee's brief.

APPEAL DISMISSED; MOTION FOR SUMMARY AFFIRMANCE DENIED.