Nicolas Laurent v. Nancy N. Herkert
196 F. App'x 771
11th Cir.
2006
Check Treatment
Docket

Nicolas LAURENT, Plaintiff-Appellant, v. Nancy N. HERKERT, United States Trustee, Defendant-Appellee.

No. 05-17173

United States Court of Appeals, Eleventh Circuit.

Aug. 22, 2006.

Non-Argument Calendar.

ther admitted nor proven to a jury beyond a reasonable doubt. . Moreover, we have held that a defendant‘s non-constitutional, or statutory, Booker rights are violated when he is sentenced under a mandatory guidelines system that Booker has rendered advisory, even in the absence of Booker constitutional error. .

Here, the parties agree that both types of Booker error occurred. That is, the district court used extra-verdict enhancements to reach a Guidelines result (Booker constitutional error), and the court applied the Guidelines in a mandatory fashion (Booker statutory error). Thus, the question of whether Edmonds is entitled to a new sentence under Booker turns on whether he has carried his burden of showing prejudice under the third-prong of the plain error test. We conclude that he has not.

The third prong of the plain-error test “almost always requires that the error must have affected the outcome of the district court proceedings.” (quotation marks and citations omitted). “The standard for showing that is the familiar reasonable probability of a different result formulation, which means a probability sufficient to undermine confidence in the outcome.” (quotation marks and citations omitted). In his supplemental brief, Edmonds points to nothing in the record to suggest he would receive a different sentence if we were to remand to the district court for resentencing under an advisory scheme. And our own review of the record, with particular attention to the sentencing transcript and PSI, likewise reveals no basis for a conclusion that under an advisory Guidelines scheme, there is a reasonable probability that Edmonds would have received a more lenient sentence.3

Accordingly, we reinstate our prior opinion, with the exception of our discussion concerning Blakely‘s application to the Guidelines, for which we substitute the foregoing, and affirm, once again, Edmonds‘s conviction and sentence after our reconsideration in light of Booker, pursuant to the Supreme Court‘s mandate.

OPINION REINSTATED IN PART AND SUBSTITUTED IN PART; AFFIRMED.

Nicolas Laurent, Mattapan, MA, pro se.

Amy E. Carrington, Miramar, FL, for Defendant-Appellee.

Before DUBINA, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Nicholas S. Laurent, a Chapter 13 debt-or proceeding pro se, again appeals the district court‘s order relating to his motion to proceed with an interlocutory appeal from the bankruptcy court‘s Order Granting the Chapter 13 Trustee‘s Motion to Redirect Payment. We previously vacated the district court‘s dismissal order, which was based on the district court‘s understanding that it lacked jurisdiction. See (not published). We held that the district court had jurisdiction to render a decision on Laurent‘s motion. Accordingly, we directed the district court to decide, on remand, whether or not to grant the debtor leave to proceed with an interlocutory appeal from the bankruptcy court. On remand, the district court denied leave to proceed. Laurent now appeals that decision. We affirm.

The district court in a bankruptcy appeal functions as an appellate court in reviewing the bankruptcy court‘s decision. . District courts may grant leave to hear appeals of interlocutory orders entered by a bankruptcy judge. See 28 U.S.C. § 158(a). “Because [28 U.S.C. § 158(a)] does not provide the district court any criteria for determining whether to exercise their discretionary authority to grant leave to appeal, the court[s] look[] to 28 U.S.C. § 1292(b) which governs discretionary interlocutory appeals from district courts to the court of appeals.” . In order to obtain leave to proceed under 28 U.S.C. § 1292(b), a party must demonstrate that: (1) the order presents a controlling question of law; (2) over which there is a substantial ground for difference of opinion among courts; and (3) the immediate resolution of the issue would materially advance the ultimate termination of the litigation. See 28 U.S.C. § 1292(b).

Here, the bankruptcy court‘s order granting the Trustee‘s motion to redirect payment and ordering that any remaining funds, including those returned from Bank Atlantic, be refunded to Laurent, did not meet the criteria warranting leave to file an interlocutory appeal. The order did not present any issue of controlling law over which there is disagreement among courts, but rather, it resolved the practical issue concerning to whom the Trustee should pay the funds she still held. Moreover, the order does not materially advance the outcome of the litigation. At the time of the order, the bankruptcy court had closed the case and discharged the Trustee, and Bank Atlantic, for whom the contested funds had been ear-marked, had rejected the funds. Finally, as noted by the district court, resolution on the merits of an appeal of the order to redirect funds would not grant Laurent the relief he sought: title to the guardianship property had already passed to the guardian, making the guardian the legal owner. Therefore, the district court did not err by denying leave to proceed with an interlocutory appeal.

AFFIRMED.

Notes

3
In fact, the court expressly rejected the factors Edmonds argued in support of a lower sentence, including his age and mental and physical impairments. In imposing sentence, the district court noted that it was “very sorry about Mr. Edmonds‘s health.... I wish that he were a whole man, and that he had not had a heart attack, and that he didn‘t have the other things that have been described, but I don‘t control that. And I don‘t think anything I‘ve read or heard in this case dictates that the sentence ought to be changed because of that.”