explaining that, prior to Olano, the court often used the term “waiver” without “addressing the difference between waiver and forfeiture” and, despite concluding that a defendant’s claims were waived, sometimes reviewed the merits of the claim on appeal
How later courts described this case
- explaining that, prior to Olano, the court often used the term “waiver” without “addressing the difference between waiver and forfeiture” and, despite concluding that a defendant’s claims were waived, sometimes reviewed the merits of the claim on appeal
- holding “that a defendant who simply failed to raise a double jeopardy claim before the district court, and took no affirmative steps to voluntarily relinquish the claim, forfeited that claim” and reviewed for plain error
- recognizing that “the simple failure to assert a right, without any affirmative steps to voluntarily waive the claim, is a forfeiture to be reviewed under the plain error standard embodied in [Fed.R.Crim.P.] Rule 52(b)”
- explaining that failure to assert a right constitutes forfei- ture and not waiver
Written by the judges who cited it.
The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
No. 06-11876 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
(D.C. Docket No. 05-20392-CR) MARCH 15, 2007
THOMAS K. KAHN
UNITED STATES OF AMERICA, CLERK
Plaintiff-Appellee,
versus
DOMINIQUE LEWIS,
Defendant-Appellant.
---------------------------
On Appeal from the United States District Court for the
Southern District of Florida
--------------------------
(Opinion November 1, 2006)
(March 15, 2007)
Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES,
BARKETT, HULL, MARCUS, WILSON and PRYOR, Circuit Judges.
BY THE COURT:
A member of this Court in active service having requested a poll on the suggestion of
rehearing en banc and a majority of the judges in this Court in active service having voted in favor of granting a
rehearing en banc,
IT IS ORDERED that the above cause shall be reheard by this court en banc. The previous panel's
opinion is hereby VACATED.