United States v. DeVita

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 17, 2005
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 03-10097
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PRISCILLA DeVITA,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of Texas
(5:02-CR-91-2)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
This court affirmed Priscilla DeVita’s conviction and
sentence, following a jury trial, for conspiracy and aiding and
abetting to take a motor vehicle resulting in serious bodily
injury, in violation of 18 U.S.C. §§ 2, 371, 2119, and 2119(2).
United States v. Devita, 03-10097, 86 Fed. Appx. 738 (5th Cir. 10
Feb. 2004) (unpublished). The Supreme Court granted Devita’s
petition for writ of certiorari and for leave to proceed in forma

-- 1 of 2 --

2
pauperis; vacated our previous judgment; and remanded the case for
further consideration in the light of United States v. Booker, 543
U.S. ___, 125 S. Ct. 738 (2005). DeVita v. United States, 125 S.
Ct. 1032 (2005).
We requested supplemental briefs from the parties addressing
the impact of Booker. DeVita filed a supplemental brief, claiming
reversible plain error; citing new authority, discussed below, the
Government moved to reinstate the prior affirmance of DeVita’s
conviction and sentence, or, in the alternative, for an extension
of time to file its supplemental brief. Other than advising the
Government that she opposes its motion, DeVita did not respond.
DeVita did not raise Booker-error until her petition for writ
of certiorari. Absent extraordinary circumstances, we will not
consider a defendant’s Booker-related claims presented for the
first time in a petition for writ of certiorari. United States v.
Taylor, 409 F.3d 675, 676 (5th Cir. 2005). DeVita has not
demonstrated the requisite extraordinary circumstances. Therefore,
IT IS ORDERED that Appellee’s motion to reinstate prior
affirmance of Appellant’s conviction and sentence is GRANTED.
IT IS FURTHER ORDERED that Appellee’s alternative request for
an extension of time of 14 days from the court’s denial of the
motion to reinstate prior affirmance of Appellant’s conviction and
sentence to file its supplemental brief is DENIED AS MOOT.

-- 2 of 2 --