United States v. Lamont Wendel Smith

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 23, 2006
No. 03-16538
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 03-00091-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIAN DECARLO, JR.,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Georgia
_________________________
(March 23, 2006)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before TJOFLAT, MARCUS and COX, Circuit Judges.
PER CURIAM:
This case is before the court for reconsideration in light of United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). Along with co-defendant Lamont
Wendel Smith, Defendant Julian DeCarlo, Jr. was convicted and sentenced for
conspiring to distribute cocaine hydrochloride and possessing a firearm in furtherance
of a drug trafficking crime. We previously affirmed both defendants’ convictions and
sentences in an unpublished opinion.
The Supreme Court vacated our prior decision as to DeCarlo and remanded the
case to us for reconsideration in light of Booker. DeCarlo v. United States, 126 S.
Ct. 130 (2005). For the reasons that follow, we reinstate our prior decision affirming
DeCarlo’s 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.
United States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001). DeCarlo made two
arguments in his initial appellate briefs: (1) that the evidence was insufficient to
support his convictions, and (2) that the district court erred in enhancing his sentence
for obstructing justice and for playing a leadership role in the offense because the
evidence did not support the enhancements. DeCarlo did not raise, in his initial
appellate briefing, any issue regarding the constitutionality of the Guidelines. Nor
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did he argue that his right to trial by jury was violated as a result of judicial fact-
finding that enhanced his sentence. Thus, DeCarlo abandoned any Booker arguments
he might have had.1
OPINION REINSTATED; CONVICTIONS AND SENTENCES AFFIRMED.
1
In his supplemental briefing on remand, DeCarlo argues that, even if he failed to raise
Booker arguments at sentencing and in his initial appellate briefing, he is entitled to plain error
review now. This argument confuses failure to preserve an error in the trial court with abandonment
of an issue on appeal. If a litigant fails to object or otherwise raise an issue in the district court but
raises that same issue in his initial appellate briefs, he is entitled to plain error review by this court.
However, whether a litigant objects in the district court or not, if he fails to raise the issue in his
initial briefing to this appellate court, he has abandoned the issue and is not entitled to any appellate
review of that question. See United States v. Higdon, 418 F.3d 1136, 1138 (11th Cir. 2005) (Hull,
J., concurring in denial of rehearing en banc) (distinguishing between the prudential doctrines of
plain error review and abandonment).
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