UNITED STATES of America, Plaintiff-Appellee v. Michael F. ILLIES, Defendant-Appellant.
No. 15-30112
United States Court of Appeals, Fifth Circuit.
Nov. 2, 2015.
805 F.3d 607
Summary Calendar.
favorable dismissal based on an adverse legal premise underlying the dismissal—that the agency‘s head had no power to review and disapprove of certain collective bargaining agreements. Id. at 1220-22. The court specifically noted that, if the agency was denied standing to appeal, it would be harmed to the extent it had to suffer a long appeals process before it could seek judicial review of the adverse legal premise. Id. at 1221-22. In a practical sense, the court held that this meant that the agency was “aggrieved” so as to have standing to appeal. See id.
The Intervenors contend that Department of Defense is analogous here because the district court‘s April 30 order rejected the Intervenors’ proof of the District‘s violations of the 2011 Consent Decree beyond the specific violation referenced and limited future objections to unitary status to violations occurring after the January 2014 fairness hearing. Based on this interpretation, the Intervenors contend that the April 30 order could preclude appellate review of the district court‘s evidentiary determinations as to pre-2014-fairness-hearing violations. Again, we disagree.
Based on our reading and counsel for the District‘s representations at oral argument, we do not interpret the district court‘s April 30 order as foreclosing the Intervenors from offering evidence of pre-fairness hearing violations in future unitary proceedings, otherwise limiting the scope of future unitary proceedings, or barring appellate review of the district court‘s evidentiary determinations. As counsel for the District conceded at oral argument, we expect that the Intervenors will have a full and fair opportunity in future unitary proceedings to offer evidence that the District has failed to eliminate the vestiges of de jure segregation or to comply in good faith with the court‘s desegregation order, whether that evidence be based on alleged violations considered at the January 2014 fairness hearing or occurring thereafter. Should the district court reject the Intervenors’ evidence and grant unitary status at some time in the future, this court will remain open to hear the Intervenors’ appellate arguments, including those, if appropriate, that challenge determinations made in the April 30 order. For now, however, we decline to accept the Intervenors’ invitation to jumpstart the appellate process in the face of the district court‘s order unequivocally denying unitary status.
III.
Having considered the Intervenors’ arguments, we conclude that they are not sufficiently aggrieved and therefore lack standing to appeal the district court‘s orders. We therefore DISMISS the Intervenors’ appeal without regard to the merits.
Patricia Ann Gilley, Gilley & Gilley, Attorneys at Law, Shreveport, LA, for Defendant-Appellant.
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge.
While on supervised release, Michael Illies left the state of Texas without the permission of his probation officer and travelled to Arkansas, where he was arrested and charged with several drug offenses. He pled guilty, in Arkansas state court, to possession of methamphetamine with the intent to deliver. The state court sentenced him to twenty years in prison, with twelve years suspended. Thereafter, Illies appeared in federal court for a revocation hearing. At the hearing, Illies agreed that he was convicted of a new felony in Arkansas, which required mandatory revocation of his sentence and that the applicable advisory guideline sentencing range was 27 to 33 months. The district court sentenced him to 27 months in prison, to be served consecutively to any
As a preliminary matter, we note that Illies did not object to his sentence after it was imposed. Nor did he raise below any of the arguments he now makes on appeal. Thus, we review for plain error. See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009).
Illies challenges his sentence on three grounds. He first argues that the district court committed procedural error by failing to consider the proper
Illies next argues that the district court made erroneous factual findings with respect to whether Illies‘s travel to Arkansas was authorized and whether Illies was selling drugs rather than just using them. (ECF 22, 21-23.) In this circuit, however, “questions of fact capable of resolution by the district court can never constitute plain error,” United States v. Chung, 261 F.3d 536, 539 (5th Cir. 2001) (citation omitted), and, regardless, the findings here have support in the record.
Illies last argues that his sentence was substantively unreasonable. He contends that the district court, when balancing the sentencing factors, improperly focused on his new conviction and ignored his compliance with the terms of his supervised release up until that conviction. Illies‘s within-guidelines sentence is presumptively reasonable. See United States v. Lopez-Velasquez, 526 F.3d 804, 808-09 (5th Cir. 2008). Illies makes no effort to rebut that presumption. Instead, his challenge amounts to a disagreement with the district court‘s balancing of the
Finally, we observe that the district court ordered orally that Illies‘s 27-month revocation sentence would be served consecutively to any other sentence, but that the written judgment does not include this language. When there is a conflict between the oral pronouncement of a sentence and the written judgment, the oral pronouncement prevails. United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003).
AFFIRMED; REMANDED FOR THE LIMITED PURPOSE OF CORRECTING THE CLERICAL ERROR IN THE JUDGMENT.