United States v. Robert O'Neal , 154 F. App'x 161 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 03-10559 ELEVENTH CIRCUIT
November 9, 2005
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 01-06244 CR-WDF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARD SAPP,
JEFFREY SAPP,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(November 9, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before DUBINA, BARKETT and COX, Circuit Judges.
PER CURIAM:
This case is before the court for reconsideration in light of United States v.
Booker, 543 U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). A jury found the
defendants Leonard Sapp and Jeffrey Sapp and co-defendant Robert O’Neal guilty
of conspiracy to possess with intent to distribute at lease fifty grams of crack cocaine,
in violation of 21 U.S.C. § 846, and guilty on multiple counts of possession with
intent to distribute at least five grams of crack cocaine, in violation of 21 U.S.C. §
841. Leonard Sapp was sentenced, pursuant to the United States Sentencing
Guidelines (“Guidelines”), to a total of 360 months’ imprisonment. Jeffrey Sapp was
not sentenced under the Guidelines; he was sentenced to 240 months’ imprisonment,
the statutory minimum under 21 U.S.C. § 841(b)(1). We previously affirmed the
convictions and sentences. See United States v. O’Neal, 362 F.3d 1310 (11th Cir.
2004). The Supreme Court vacated our prior decision as to Leonard Sapp and Jeffrey
Sapp and remanded the case to us for reconsideration in light of Booker. Jeffery Sapp
v. United States, 125 S. Ct. 1114 (2005); Leonard Sapp v. United States, 125 S. Ct.
1011 (2005). For the reasons that follow, we reinstate our prior decision affirming
the Defendants’ convictions and sentences.
Our circuit precedent holds that any argument not raised in a party’s initial
brief is considered abandoned. United States v. Dockery, 401 F.3d 1261, 1262-63
(11th Cir. 2005). The Booker decision did nothing to abrogate that well-settled rule.
2
United States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2005). Contrary to assertions in
their supplemental briefs, neither Defendant raised, in his initial appellate brief, any
issue regarding the constitutionality of the Guidelines, either facially or as applied,
or argued that his right to trial by jury was violated as a result of judicial fact-finding
that enhanced his sentence.1 Thus, both of these defendants abandoned any Booker
arguments they might have had.
OPINION REINSTATED; CONVICTIONS AND SENTENCES
AFFIRMED.
1
Leonard Sapp argues in his supplemental briefing on remand that waiver does not attach
because an Apprendi argument was made in his initial appellate brief. However, a review of his
opening appellate brief reveals that Leonard Sapp incorporated by reference the only Apprendi
argument made on appeal (that of co-defendant O’Neal)– that the special verdict form submitted to
the jury was insufficient to comply with Apprendi because it inadequately apprised the jury that it
had to find drug quantity “beyond a reasonable doubt.” That argument cannot be construed as a
challenge to the constitutionality of the Guidelines and thus does not suffice to prevent waiver of the
Booker issue.
3