United States v. Odingo Odak

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 18-11170
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ODINGO ODAK,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-194-1

Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM:
*

Odingo Odak appeals the sentence imposed following his jury trial
conviction for 21 counts of preparing false tax returns, specifically the district
court’s order that he pay $73,024 in restitution. He contends that the
restitution award violates the Sixth Amendment because the facts supporting
it were not found by the jury beyond a reasonable doubt. Odak concedes that
the issue is foreclosed in this circuit by United States v. Rosbottom, 763 F.3d

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
April 21, 2020

Lyle W. Cayce
Clerk
Case: 18-11170 Document: 00515389735 Page: 1 Date Filed: 04/21/2020

No. 18-11170
2
408, 420 (5th Cir. 2014), in which we held that the Sixth Amendment does not
apply to restitution findings, but argues that Rosbottom’s reasoning was
rejected by Alleyene v. United States, 570 U.S. 99 (2013). The Government
moves for summary affirmance in light of Rosbottom or, alternatively, for an
extension of time in which to file a merits brief.
Rosbottom clearly forecloses Odak’s appeal of his sentence. See
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969); see also
United States v. Petras, 879 F.3d 155, 169 (5th Cir. 2018). Odak points to no
“intervening change in the law, such as by a statutory amendment, or the
Supreme Court, or our en banc court” overruling or relevantly abrogating
Rosbottom. United States v. Quiroga-Hernandez, 698 F.3d 227, 229 (5th Cir.
2012) (internal quotation marks and citation omitted). Accordingly, the
Government’s motion for summary affirmance is GRANTED. Its alternative
motion for an extension of time is DENIED. The judgment is AFFIRMED.
Case: 18-11170 Document: 00515389735 Page: 2 Date Filed: 04/21/2020