United States v. Anthony Laterza

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________ FILED
U.S. COURT OF APPEALS
No. 03-12499 ELEVENTH CIRCUIT
JUNE 7, 2006
Non-Argument Calendar
THOMAS K. KAHN
__________________________
CLERK
D.C. Docket No. 02-14072-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY LATERZA,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
__________________________
(June 7, 2006)
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
This case is on remand from the Supreme Court for further consideration in
light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). Laterza v.
United States, 543 U.S. 1106, 125 S.Ct. 1006 (Mem.) (2005). In our previous
decision, United States v. Laterza, No. 03-12499 (11th Cir. March 17, 2004)
(unpublished opinion), which the Supreme Court has vacated, we affirmed the 60
months prison sentence appellant received for manufacturing more than 100
marijuana plants, in violation of 21 U.S.C. § 841(a)(1). Appellant now contends
that Booker requires that we vacate his sentence and remand the case for
resentencing because the district court sentenced him pursuant to the mandatory
guidelines sentencing scheme based on facts neither admitted by him nor found by
the jury beyond a reasonable doubt.
We reject appellant’s contention. First, appellant did not raise it in his
initial brief on appeal, and his failure is fatal. See, e.g., United States v. Ardley,
242 F.3d 989 (11th Cir. 2001). Second, and alternatively, the district court did not
commit a Booker error at all. The court sentenced appellant to the mandatory
minimum sentence required by law – 60 months imprisonment – because the jury
found beyond a reasonable doubt that appellant’s offense involved more than 100
marijuana plants. See 21 U.S.C. § 841(b)(1)(B).1
We have considered this appeal in light of United States v. Booker, and find
1
Appellant did not qualify for the “safety-valve” provision of 18 U.S.C. § 3553(f);
U.S.S.G. § 5C1.2. United States v. Laterza, No-03-12499, at 6-7.
2
no basis for disturbing our previous decision. That decision is therefore
reinstated2.
SO ORDERED.
2
All outstanding motions are denied as MOOT in light of the court’s ruling.
3