United States v. Richard O. Singer

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-15801 March 28, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 03-00005-CR-FTM-2DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD O. SINGER,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Middle District of Florida
_________________________
(March 28, 2006)
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
The Supreme Court vacated our prior decision and remanded the case to us for
further consideration in light of United States v. Booker, 543 U.S. 220, 125 S. Ct.
738, 160 L. Ed. 2d 621 (2005). We previously affirmed Appellant’s 60-month
sentence for conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 371 and
1344. See United States v. Singer, Case No. 03-15801, 152 Fed. Appx. 869 (Oct. 14,
2005) (Table) (unpublished). We asked for, and have received, supplemental briefs
from the parties on the effect of Booker on this case.
In his initial brief, Singer argued the district court erred by (1) denying his
motion for judgment of acquittal because the government presented insufficient
evidence to show that federally-insured banks, as opposed to non-bank entities, were
the actual or intended victims of the criminal scheme; (2) miscalculating the fraud-
loss amount under U.S.S.G. § 2F1.1(b)(1); (3) assessing a four-level leadership-role
enhancement under U.S.S.G. § 3B1.1(a); (4) applying a two-level enhancement under
U.S.S.G. § 2F1.1(b)(5)(C) for the use of a means of identification to unlawfully
produce other means of identification; and (5) ordering that restitution be paid to the
defrauded merchants. Notably, Singer raised no error based on Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), or any other case
extending or applying the Apprendi principle.
In United States v. Ardley, 242 F.3d 989 (11th Cir.), cert. denied, 121 S. Ct.
2621 (2001), after the Supreme Court’s remand with instructions to reconsider our
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opinion in light of Apprendi, we observed the following:
Nothing in the Apprendi opinion requires or suggests that we are
obligated to consider an issue not raised in any of the briefs that
appellant has filed with us. Nor is there anything in the Supreme Court’s
remand order, which is cast in the usual language, requiring that we treat
the case as though the Apprendi issue had been timely raised in this
Court. In the absence of any requirement to the contrary in either
Apprendi or in the order remanding this case to us, we apply our
well-established rule that issues and contentions not timely raised in the
briefs are deemed abandoned.
Id. at 990 (citations omitted); see also United States v. Nealy, 232 F.3d 825, 830
(11th Cir. 2000) (“Defendant abandoned the [Apprendi] indictment issue by not
raising the issue in his initial brief.”). We have extended the foregoing rule to
preclude untimely challenges based on Booker. See United States v. Dockery, 401
F.3d 1261, 1263 (11th Cir. 2005).
In his initial brief in this case, Singer asserted no such Apprendi (or its
progeny) challenge to his sentence. Moreover, he points to no authority, and we have
found none, that would allow us not to follow our “well-established rule that issues
and contentions not timely raised in the briefs are deemed abandoned” in the instant
case. See Ardley, 242 F.3d at 990. Accordingly, we reinstate our October 14, 2005
opinion in this case and affirm, once again, Singer’s conviction and sentence after our
reconsideration in light of Booker, pursuant to the Supreme Court’s mandate.
OPINION REINSTATED; SENTENCE AFFIRMED.
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