United States v. William Harry West , 156 F. App'x 150 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 23, 2005
No. 01-14516
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 00-00048-CR-LAC-3-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM HARRY WEST, et al.,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(November 23, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before ANDERSON, BARKETT and RONEY, Circuit Judges.
PER CURIAM:
On January 24, 2005, the Supreme Court granted William Harry West’s
petition for writ of certiorari and vacated our decision affirming his jury
conviction and 136-month sentence for conspiracy to commit wire fraud and
securities fraud, 18 U.S.C. § 371, conspiring to commit money laundering
offenses, 18 U.S.C. § 1956(h), and money laundering, 18 U.S.C. § 1957. The
Court remanded the case to us for further consideration in light of Booker v.
United States, 543 U.S. ___, 125 S. Ct. 738 (2005). Both parties have filed
supplemental letter briefs addressing the implications of Booker to the facts and
circumstances of this case. We reinstate our previous opinion, and affirm West’s
convictions and sentences.
The government argues that West has abandoned any Booker claim by
failing to raise it in his initial brief. West’s court-appointed appellate counsel on
this remand has correctly noted that West’s initial brief adopted the briefs of his
five co-defendants pursuant to 11th Cir. R. 28-1(f). Co-defendant Jeffrey A.
Matz’s initial brief raised an Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348 (2000), argument relating to Matz’s denial of his Sixth Amendment right to a
jury trial in his criminal contempt proceeding. This Court has “liberally construed
what it means to raise a Blakely-type or Booker-type issue” on appeal. United
States v. Levy, 416 F.3d 1273, 1279 (11th Cir. 2005); cf. United States v. Dowling,
403 F.3d 1242, 1246 (11th Cir. 2005) (listing factors to evaluate whether “Booker-
type” issue was raised in initial brief). By West adopting Matz’s initial brief and
applying our liberal rules of raising a Booker objection in an opening brief, West
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has timely raised a “Booker-type issue” in his opening brief. Levy, 416 F.3d at
1279; Dowling, 403 F.3d at 1246.
“The first question that an appellate court reviewing a Booker claim must
ask is: did the defendant make a constitutional objection?” Dowling, 403 F.3d at
1245. West has failed to identify, nor have we found, any Booker-type
constitutional objection to sentencing that was made in the district court. This
results in a plain error review, requiring reversal only if there is (1) error, that is
(2) plain, and (3) affects West’s substantial rights. Dowling, 403 F.3d at 1246-47.
“If all three conditions are met, an appellate court may then exercise its discretion
to notice a forfeited error, but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” 403 F.3d at 1247(quotation omitted).
Although West meets the first two prongs of the plain error analysis because
the district court sentenced him under the then mandatory sentencing guideline
scheme to 136 months imprisonment, which was the middle of the guideline range,
West has failed to demonstrate, however, that
there is a reasonable probability of a different result if
the guidelines had been applied in an advisory instead of
binding fashion by the sentencing judge in this case
because nothing in the record indicates that the judge
might have imposed a different sentencing scheme.
403 F.3d at 1247 (quotation omitted).
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A review of West’s sentencing transcripts negates any reasonable
probability that the district court would have sentenced West differently under an
advisory scheme. At sentencing, the district court refused to exercise its
discretion under the then mandatory guidelines by denying West’s request to be
sentenced below the guidelines. The district court ruled as follows:
THE COURT: Excuse me, before we go, I do want to
give you the Court’s decision with regard to the money
laundering and your motion to go below the guidelines.
The motion will be denied. I do find that money
laundering was an appropriate guideline. Not that I
necessarily always approve of the guidelines, what those
commissioners do, but I think in their decision that it is
appropriate, that this is not out of the heartland of the
money laundering cases, because the money specifically
was laundered to further the criminal activity that was
involved and is the type of conduct that Congress
intended to prescribe.
Accordingly, West has not shown that the mandatory application of the
guidelines affected his substantial rights. See Dowling, 403 F.3d at 1247. We
therefore reinstate our previous opinion in this case and affirm West’s convictions
and sentences.
OPINION REINSTATED; SENTENCE AFFIRMED.
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