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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40585
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
MARK ERVIN THIBODEAUX,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
May 8, 2000
Before WIENER, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:
The Government appeals the sentence imposed on Mark Ervin
Thibodeaux following a guilty plea conviction. We dismiss the
appeal.
I. FACTS AND PROCEDURAL HISTORY
Thibodeaux pleaded guilty pursuant to a written plea agreement
to one count of felon in possession of a firearm pursuant to 18
U.S.C. § 922(g)(1). Initially, the Government believed that two of
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Thibodeaux's prior convictions had occurred on the same date and
counted as a single conviction. Based on that understanding, the
plea agreement stated that Thibodeaux faced a possible maximum
sentence of ten years in prison. The Government subsequently
determined that the two convictions had occurred on different dates
and contended that Thibodeaux should be sentenced to the mandatory
fifteen year sentence provided in § 924(e)(1), irrespective of the
plea agreement. The district court, disagreeing with the
Government, sentenced Thibodeaux to ten years' imprisonment and
three years' supervised release.

II. APPROVAL FOR GOVERNMENT'S APPEAL OF SENTENCE
The Government appealed Thibodeaux's sentence. The Government
may file a notice of appeal for review of an otherwise final
sentence if, inter alia, the sentence was imposed in violation of
law or was imposed as a result of an incorrect application of the
sentencing guidelines. See 18 U.S.C. § 3742(b). However, "[t]he
Government may not further prosecute such appeal without the
personal approval of the Attorney General, the Solicitor General,
or a deputy solicitor general designated by the Solicitor General."
See id. Thibodeaux contends that this appeal should be dismissed
because the Government has not demonstrated that it has the
requisite authority to further prosecute this appeal. Although
afforded an opportunity to file a reply brief after this issue was
raised, the Government has not responded to Thibodeaux's § 3742(b)
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concerns by briefing the issue or by including in the record proof
that it has in fact received authority to further prosecute the
appeal.
This circuit has not stated expressly that the Government must
demonstrate compliance with, or include in the record on appeal
proof of compliance with, § 3742's approval requirement. The
circuits which have addressed the issue have not spoken with one
voice concerning when or how the Government must document § 3742
approval. Compare, e.g., United States v. Smith, 910 F.2d 326, 328
(6th Cir. 1990)(holding that, while approval is not jurisdictional,
in the exercise of its supervisory authority the Sixth Circuit
requires written proof of compliance dated not later than notice of
appeal and filed not later than filing of the brief to avoid
dismissal) with United States v. Petti, 973 F.2d 1441, 1446 n.9
(9th Cir. 1992)(holding that written proof of authorization
submitted with Government's reply brief was sufficient to avoid
dismissal of appeal) and United States v. Hendrickson, 22 F.3d 170,
172 n.1 (7th Cir. 1994)(stating that § 3742(b)'s requirement is not
jurisdictional and that the court would not be divested of
jurisdiction if the Government failed to secure § 3742(b) approval
for appeal).
Section 3742 creates a comprehensive system for appellate
review of sentences. S. REP. NO. 98-225, at 155 (1984), reprinted
in 1984 U.S.C.C.A.N. 3182, 3338. Congress designed the statute to
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focus the appellate courts' attention on those sentences for which
review is crucial to the proper functioning of the sentencing
guidelines and to provide a means to correct erroneous and clearly
unreasonable sentences. Id. Congress determined that government
appeals of sentences below the applicable guideline range were
necessary to this system. Congress found:
If only the defendant could appeal his sentence, there
would be no effective opportunity for the reviewing
courts to correct the injustice arising from a sentence
that was patently too lenient. This consideration has
led most Western nations to consider review at the behest
of either the defendant or the public to be a fundamental
precept of a rational sentencing system, and the
Committee considers it to be a critical part of the
bill's sentencing structure. The unequal availability of
appellate review, moreover, would have a tendency to skew
the system, since if appellate review were a one way
street, so that the tribunal could only reduce excessive
sentences but not enhance inadequate ones, then the
effort to achieve greater consistency might well result
in a gradual scaling down of sentences to the level of
the most lenient ones. Certainly the development of a
principled and balanced body of appellate case law would
be severely hampered.
Id. at 151, 1984 U.S.C.C.A.N. at 3334. Congress imposed the
restriction at issue in the present case in order to assure that
appeals are not routinely filed for every sentence below the
guidelines. Id. at 154, 1984 U.S.C.C.A.N. at 3337; see also United
States v. Long, 911 F.2d 1482, 1484 (11th Cir. 1990). The language
of the statute does not mention that the approval must be in
writing or that approval must be filed in the record of the case on
appeal.
When presented with the appropriate case, this circuit may
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well choose to exercise its supervisory authority to set out
requirements of timing or form to guide the government in
demonstrating its compliance with § 3742(b). However, we decline
to develop any bright-line rules in a case in which the Government
wholly defaulted the question. The Government failed to respond,
either factually or legally, to Thibodeaux's contention that the
appeal should be dismissed for failure to comply with the dictates
of § 3742. It has long been the rule in this circuit that any
issues not briefed on appeal are waived. See Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993). Even though lack of Justice
Department authority to appeal is an issue raised by the appellee
as an affirmative defense to the Government's appeal, that rule
nonetheless informs our decision in this case. Because there is no
evidence that the Government ever received § 3742 approval for this
appeal, no statement by the Government that it sought or received
approval and no analysis that might form the basis for determining
that approval was not necessary in spite of the mandatory language
of the statute, we dismiss this appeal.
APPEAL DISMISSED.
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