United States v. Lewis
412 F.3d 614
5th Cir.
2005
Check Treatment
Docket

UNITED STATES of America, Plaintiff-Appellee, v. Karen LEWIS, Defendant-Appellant.

No. 04-10102.

United States Court of Appeals, Fifth Circuit.

June 14, 2005.

409 F.3d 614

fendants removed the first case, a second plaintiff, who was represented by the same attorneys and who was also a shareholder, filed a second suit in state court in which she asserted additional state law claims and omitted the federal claims. The federal district court in the removed case enjoined the state court suit. The Ninth Circuit recognized that a federal court must have the ability to enjoin state proceedings that are filed to subvert the purposes of the relevant federal removal statute.15 On the facts before it in Belzberg, however, the Ninth Circuit reversed the injunction on the ground that it was barred by the Anti-Injunction Act. The district court had not ruled that the second suit was “fraudulent or an attempt to subvert the purposes of the removal statute,”16 and the second suit involved “different plaintiffs, additional counsel, additional defendants, and only state claims.”17 There was therefore no basis for concluding that the new suit was merely a refiling of the old suit in an attempt to subvert the purposes of the removal statute.

Belzberg, although arguably more apposite than Frith or KPERS, is nevertheless distinguishable on the ground that the plaintiff/shareholder filed the second suit while the shareholder class action was still intact in the federal court; i.e., the second plaintiff was still a member of the plaintiff class in the federal suit. Here, the Smith plaintiffs ceased having any connection to the Fulford and Abram suits when class certification was rejected in the Fulford suit and abandoned in the Abram suit. This left the Smith plaintiffs with no recourse but to file their own suit, and they were free to do so.

Transport argues in its reply brief that the Smith plaintiffs did not have to file suit in state court to protect their rights because they could have attempted to intervene in the Fulford and Abram actions. Although the Smith plaintiffs appear to have had that option, they also had the option of filing their own suit.18 Nothing required them to exercise the intervention option; the choice was theirs to make.

Transport might have prevailed had it removed the Smith suit on a claim of fraudulent joinder of Davis, but for reasons not apparent on appeal, Transport never pursued this alternative. The district court‘s order denying Transport‘s motion for an injunction of state court proceedings in the Smith case is

AFFIRMED.

Susan B. Cowger, Dallas, TX, for Plaintiff-Appellee.

Julian R. Murray, Jr., Chehardy, Sherman, Ellis, Breslin, Murray, Recile & Griffith, Metairie, LA, for Defendant-Appellant.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before GARZA, DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:

On a previous appeal, we affirmed Karen Lewis’ conviction and sentence for money laundering. . She sought and the Supreme Court granted a writ of certiorari. The Supreme Court vacated the judgment and remanded the case for further consideration in light of .

Lewis did not raise an objection to the constitutionality of her sentence until the reply brief of her appeal. She again raised a Booker claim in her petition for certiorari. As noted in our original opinion, we generally do not address issues not raised in initial appellate briefs. (citing ). Thus, this case is similar to in which we held that “absent extraordinary circumstances, we will not consider Booker issues raised for the first time in a petition for rehearing.” . In Taylor, this court denied the Booker appeal because the defendant was unable to show plain error, let alone extraordinary circumstances. Here, we do not need to determine what constitutes “extraordinary circumstances” because Lewis is unable to even meet the plain error burden.

Under plain error, this court may only correct a defendant‘s sentence if there is an: (1) error; (2) that is plain; (3) that affects substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. ; see FED. R. CRIM. P. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court‘s attention.“).

To show reversible plain error under Booker, the petitioner must “demonstrate[] that the sentencing judge sentencing under an advisory scheme rather than a mandatory one would have reached a significantly different result.” , petition for cert. filed (Mar. 31, 2005) (No. 04-9517). “[I]f it is equally plausible that the error worked in favor of the defense, the defendant loses; if the effect of the error is uncertain so that we do not know which, if either, side is helped, the defendant loses.” At the sentencing hearing, the district court imposed a downward departure and said, “I think that‘s getting to the point where a sentence would be appropriate within the range....” Thus, Lewis has failed to show that she would have received a lower sentence had the Guidelines been advisory rather than mandatory.

Accordingly, we conclude that nothing in the Supreme Court‘s Booker decision requires us to change our prior affirmance in this case. We therefore reinstate our judgment affirming the defendant‘s conviction and sentence.

DeMOSS, Circuit Judge, dissenting:

I would respectfully dissent. The government concedes that the district court committed a clear or obvious (Sixth Amendment Booker) error in sentencing based on facts not found by a jury or admitted by the defendant and did so under a mandatory guideline scheme (see page 2 of government‘s supplemental letter brief). The dialogue at the sentencing hearing clearly indicates that the district judge thought the sentencing range as proposed by the presentence report (PSR) was “too high” and “inappropriate.” This sentencing judge did reduce the offense level at the government‘s suggestion based on the defendant‘s limited role in the offense, a factor not addressed in the PSR. But that reduction was unrelated to the “clear error” of relying on facts found only by the judge as to the quantity of money laundered. In my view, this is one of those cases where the only person who can correctly say what the sentencing judge would have done if he operated under an advisory guideline system is the sentencing judge himself; and justice would be better served by remanding this case to that judge to make that call.

Notes

15
Id. at 741.
16
Id.
17
Id.
18
(after denial of class certification, “class members may choose to file their own suits or to intervene as plaintiffs in the pending action“).