     Case: 18-11170      Document: 00515389735         Page: 1    Date Filed: 04/21/2020




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

                                                                                FILED
                                    No. 18-11170                            April 21, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 18-11170     Document: 00515389735     Page: 2   Date Filed: 04/21/2020


                                  No. 18-11170

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.




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