United States v. Cecilio Nunez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ June 28, 2005
THOMAS K. KAHN
No. 04-10463 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 01-00981-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CECILIO NUNEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 28, 2005)
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
This case is before this Court for the third time. In the two previous
appeals, we addressed issues related to Nunez’s convictions and his motion for a
new trial. United States v. Nunez, Nos. 02-15239 & 02-15426 (11th Cir. Aug. 28,
2003), and United States v. Nunez, No. 04-10463 (11th Cir. Aug. 26, 2004). Now,
this case is before the Court on remand for consideration of Nunez’s sentence in
light of United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005).
I. BACKGROUND
Nunez was convicted of: (1) conspiracy to commit robbery under the Hobbs
Act, in violation of 18 U.S.C. § 1951(a); (2) conspiracy to use a firearm during a
crime of violence and drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)
and (o); (3) two counts of Hobbs Act robbery, in violation of 18 U.S.C. §§ 2 and
1951(a); and (4) using a firearm during a crime of violence and drug trafficking
crime, in violation of 18 U.S.C. §§ 2 and 924(c).
Following his convictions, but before sentencing, Nunez moved for a new
trial. The district court denied the motion and sentenced Nunez to 272 months’
imprisonment. On appeal, this Court vacated the district court’s order denying
Nunez’s new trial motion, and remanded for an evidentiary hearing. United States
v. Nunez, Nos. 02-15239 & 02-15426 (11th Cir. Aug. 28, 2003). After the
hearing, the district court denied Nunez’s new trial motion for a second time. On
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appeal, this Court affirmed. United States v. Nunez, No. 04-10463 (11th Cir. Aug.
26, 2004). In both prior appeals, Nunez challenged only his convictions and the
denial of his motion for a new trial.
Nunez did not raise any challenge to his sentence in the prior two appeals.1
Nunez did not assert error based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348 (2000), or any other case extending or applying the Apprendi principle.
II. DISCUSSION
In United States v. Ardley, 242 F.3d 989 (11th Cir. 2001), after the Supreme
Court’s remand with instructions to reconsider our 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.
1
Nunez did object in the district court to the inclusion in the PSI of a January 13, 2000
robbery for which he was not convicted and which increased his sentence. However, his
objection in the district court to the robbery was based on the sufficiency of the evidence. It was
not a constitutional challenge.
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Id. at 990 (internal citations and citations omitted). We have applied Ardley to
several post-Booker-remand decisions and have concluded that defendants
abandoned their Booker claims when they failed to raise them in the district court
or in their initial brief in this Court. See United States v. Dockery, 401 F.3d 1261,
1262 (11th Cir. 2005); see also United States v. Pipkins, – F.3d – , 2005 WL
1421449, at *1 (11th Cir. June 20, 2005) (“The well-established law in our circuit
requires that issues be raised in the parties’ initial brief.”); United States v. Sears,
– F.3d –, 2005 WL 1334892, at *1 (11th Cir. June 8, 2005) (stating that “[t]he
Appellant’s failure to raise the [Booker] issue in his initial brief bars him from
doing so now”).
All of these post -Booker cases were remanded using the same or nearly
identical two sentence form remand order from the Supreme Court. Specifically,
the Supreme Court’s order states:
Petition for writ of certiorari granted. Judgment vacated, and case
remanded to the United States Court of Appeals for the Eleventh Circuit,
for further consideration in light of United States v. Booker, 543 U.S.
__, 125 S. Ct. 738, 160 L. Ed.2d 621 (2005).
Nunez v. United States, 125 S. Ct. 2253 (2005). Thus, we further now consider
Nunez’s sentence in light of Booker and conclude that Nunez abandoned any
Apprendi/Blakely/Booker claim by not timely raising a constitutional challenge to
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his sentence in his initial briefs in his two prior appeals. As our Pipkins, Sears,
and Dockery decisions indicate, we have consistently concluded that there is
nothing in the Supreme Court’s remand order that requires us to treat a case as
though the Booker issue was timely raised when the defendant fails to raise it in
on direct appeal. As we explained in Pipkins,
We have a long-standing rule that we will not consider issues that were
argued for the first time in a petition for rehearing, and we adhere to that
rule today. Moreover, there is nothing in the Supreme Court’s remand
order that requires us to treat this case as though the issue had been
timely raised in this court. And, the Supreme Court made clear in
Booker that we are to apply our “ordinary prudential doctrines” in
considering these types of challenges to sentences. Our ordinary
prudential doctrine requiring parties to raise all issues in their initial
briefs precludes us from addressing the Defendants’ arguments asserted
for the first time before this court in their Petitions for Rehearing en
Banc.
Pipkins, 2005 WL 1421449, at *2.
As pointed out in Pipkins, the Supreme Court emphasized that the fact that
Booker was to be applied to cases on direct review did not mean “that every
sentence gives rise to a Sixth Amendment violation [or] that every appeal will lead
to a new sentencing hearing.” Booker, 125 S. Ct. at 769. Indeed, the Supreme
Court directed courts to “apply ordinary prudential doctrines [including], for
example, whether the issue was raised below . . . .” Id.
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We note that the Supreme Court has applied its own prudential rules to
foreclose the ability of defendants to raise Blakely claims. In Pasquantino v.
United States, 125 S. Ct. 1766, 1781 n.14 (2005), decided after Booker, the
petitioners argued “in a footnote that their sentences should be vacated in light of
Blakely . . . .” However, the petitioners “did not raise this claim before the Court
of Appeals or in their petition for certiorari.” Pasquantino, 125 S. Ct. at 1781
n.14. Although the petitioners failed to previously raise the issue, “[t]his omission
was no fault of the defendants, . . . as the petition in this case was filed and granted
well before the Court decided Blakely. Petitioners thus raised Blakely at the
earliest possible point: in their merits briefing.” Pasquantino, 125 S. Ct. at 1783
n.5 (Ginsburg, J., dissenting). Despite the fact that petitioners raised their Blakely
claim at the earliest possible moment after that decision was released, the Supreme
Court applied its prudential procedural rules and declined to address the issue.
Pasquantino, 125 S. Ct. at 1781 n.14.
In summary, in the initial briefs in both of the prior appeals, Nunez asserted
no Apprendi/Blakely/Booker-based challenge to his sentence. Accordingly, we
reinstate our August 26, 2004 opinion and affirm Nunez’s sentence after our
reconsideration in light of Booker.
OPINION REINSTATED; SENTENCE AFFIRMED.
6