USA v. Justin Lewis

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11915
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTIN LEWIS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:19-cr-00005-JA-PRL-1
____________________
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2 Opinion of the Court 23-11915
Before WILSON, J ORDAN, and NEWSOM , Circuit Judges.
PER CURIAM:
Justin Lewis, proceeding pro se, appeals from the district
court’s May 17, 2023, order denying his motion to dismiss the in-
dictment pursuant to the Double Jeopardy Clause of the Fifth
Amendment. A jurisdictional question (“JQ”) asked the parties to
address the nature of our jurisdiction over this appeal. Rather than
responding to the JQ, Lewis moved to stay it pending the resolu-
tion of his petition for a writ of certiorari in his earlier appeal. The
Supreme Court has denied that petition, and we decline to stay our
jurisdictional review. Upon review of the government’s response
to the JQ and the record, we DISMISS this appeal for lack of juris-
diction.
We have already held in appeal number 22-12624, Lewis’s
earlier appeal in this same criminal case, that Lewis’s double jeop-
ardy claim is not colorable because his prior conviction for wire
fraud under 18 U.S.C. § 1343 does not bar his current prosecution
under 18 U.S.C. § 2252A(a)(5)(B) for possession of child pornogra-
phy. He is thus barred from relitigating that issue. See United States
v. Jordan, 429 F.3d 1032, 1035 (11th Cir. 2005) (“The law of the case
doctrine bars relitigation of issues that were decided, either explic-
itly or by necessary implication, in an earlier appeal of the same
case.”). Accordingly, the district court’s May 17 order denying
Lewis’s motion to dismiss on double jeopardy grounds is not im-
mediately appealable. See Richardson v. United States, 468 U.S. 317,
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23-11915 Opinion of the Court 3
322, 326 n.6 (1984) (“[W]e have indicated that the appealability of
a double jeopardy claim depends upon its being at least ‘colora-
ble’ . . . .”); United States v. Bobo, 419 F.3d 1264, 1267 (11th Cir.
2005).
All pending motions are DENIED as moot.
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