United States v. Ogle
415 F.3d 382
5th Cir.
2005
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UNITED STATES OF AMERICA, Plaintiff - Appellee v. JAMES O. OGLE, Defendant - Appellant

No. 03-60833

United States Court of Appeals, Fifth Circuit

June 27, 2005

REVISED JUNE 28, 2005; Summary Calendar; FILED June 27, 2005, Charles R. Fulbruge III, Clerk

Appeal from the United States District Court for the Southern District of Mississippi

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:

In our previous opinion in this case, we affirmed Defendant-Appellant Ogle’s conviction and sentence. See

(per curiam) (unpublished). Following our judgment, Ogle filed a petition for certiorari, in which he challenged for the first time the constitutionality of the Sentencing Guidelines as applied to him. The Supreme Court granted Ogle’s petition for certiorari, vacated our judgment, and remanded the case to this court for further consideration in light of
. We now reconsider the matter in light of
and decide to reinstate our previous judgment affirming Ogle’s conviction and sentence.

Because Ogle did not raise any

-related challenges to his sentence until his petition for certiorari, we will not review his claim absent extraordinary circumstances.
. Our cases make it clear that an argument not raised in appellant’s original brief as required by FED. R. APP. P. 28 is waived.1 Appellant argues that based on remarks made by the trial judge at sentencing, he can satisfy the plain-error test discussed in
. Even if appellant can satisfy the plain error test, he has not met the even more exacting test required to show the presence of extraordinary circumstances, which requires appellant to show a “possibility of injustice so grave as to warrant disregard of usual procedural rules.”
(footnote omitted).

Accordingly, we decline to consider the merits of his

challenge. Having reconsidered our decision pursuant to the Supreme Court’s instructions, we REINSTATE OUR JUDGMENT affirming Ogle’s conviction and sentence.

Notes

1
See
(party waived argument not included in original brief to panel);
. See also 16A C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3974.1 at 501 (1999) (issues not raised in appellant’s initial brief normally will not be considered by the court); FED. R. APP. P. 28 (a)(9)(A) which states that an appellant’s brief must contain “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.”