     Case: 10-50973     Document: 00511617580         Page: 1     Date Filed: 09/29/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 29, 2011
                                     No. 10-50973
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

R. N. “PETE” HOLLOWAY, JR.,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:10-CR-175-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        R. N. “Pete” Holloway has filed an interlocutory appeal of the district
court’s pretrial order denying his motion to dismiss the indictment on the
grounds of double jeopardy. In 2008, Holloway was charged in a single-count
indictment with conspiring to possess with intent to distribute 50 or more grams
of cocaine base. He was convicted by a jury and was sentenced to life in prison.
See United States v. Holloway, 377 F. App’x 383, 383-84 (5th Cir. 2010). On
direct appeal, this court reversed, holding that the Government failed to prove

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-50973    Document: 00511617580      Page: 2   Date Filed: 09/29/2011

                                  No. 10-50973

beyond a reasonable doubt that Holloway had entered into an agreement with
any other person to distribute crack cocaine. Id. at 386-88.
      In 2010, the Government returned a new indictment charging Holloway
with distribution of crack cocaine. Holloway filed a motion to dismiss the
indictment based on principles of double jeopardy, arguing that because the 2008
and 2010 indictments related to the same cause of action involving events within
the same time frame, double jeopardy applied. The district court denied the
motion, finding that although an acquittal was won on the conspiracy charge,
the Government was allowed to now retry Holloway on the substantive
distribution count in the present 2010 indictment because the two charges were
dissimilar, did not meet the Blockburger v. United States, 284 U.S. 299, 304
(1932) test, and did not constitute double jeopardy.
      Holloway argues that the Blockburger “same-elements” test alone is not
sufficient. He contends that this court also requires that the district court
“undertake a factually rigorous analysis” to ensure “that all components of a
double-jeopardy challenge, to include the collateral estoppel component, are
addressed.” Because this argument was not raised in the district court, we
review for plain error. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
      “As applied against the government in criminal cases, collateral estoppel
may either bar a subsequent prosecution, or it may prevent the relitigation of
particular facts necessarily established in the prior proceeding.” Neal v. Cain,
141 F.3d 207, 210 (5th Cir. 1998). Because Holloway has not shown that the
factual issue allegedly barred by collateral estoppel, his knowing distribution of
a controlled substance, was necessarily decided against the Government in the
first trial, the district did not err, much less plainly err, by failing to apply
the doctrine of collateral estoppel and by failing to conduct “a factually rigorous
analysis” of the Government’s case. See Garcia v. Dretke, 388 F.3d 496, 501
(5th Cir. 2004); United States v. Brackett, 113 F.3d 1396, 1398-1400 (5th Cir.
1997).
      AFFIRMED.

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