United States v. Gerald Padmore

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 07, 2005
No. 03-15775
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 02-00206-CR-J-21-TEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERALD PADMORE,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Middle District of Florida
_________________________
(July 7, 2005)
ON REMAND FROM THE SUPREME COURT OF
THE UNITED STATES
Before BIRCH, DUBINA and PRYOR, Circuit Judges
PER CURIAM:
This case is before us for consideration in light of United States v. Booker,
543 U.S. , 125 S. Ct. 738 (2005). We previously affirmed the denial of
Padmore’s motion to withdraw his guilty plea. See United States v. Padmore, No.
03-15775 (11th Cir. Jul. 28, 2004). The Supreme Court vacated our opinion and
remanded the case to us for further consideration in light of Booker. Padmore v.
United States, U.S. , 125 S. Ct. 1063 (2005).
On direct appeal, Padmore did not challenge his sentence and 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 in his initial brief or
during the time allowed to file a reply brief.1 After the time to file a reply brief
had expired, however, Padmore moved for leave to file a supplemental brief
1
In supplemental briefing, Padmore argues that he initially raised a Booker issue in the
district court when he argued that the fact-finding required for the weapons-enhancement
unconstitutionally shifted the burden to the defendant. Padmore, however, admitted the facts
underlying his offenses when he pled guilty to distribution of cocaine base and illegal possession of
a firearm by a convicted felon, R1-13 at 1, 15, Factual Basis; R1-17; R3 at 23-26. In his plea, he also
waived his right to appeal “except for an upward departure . . . , a sentence above the statutory
maximum, or a sentence in violation of the law apart from the sentencing guidelines” and agreed that
he would be sentenced under the federal guidelines. R1-13 at 13; R3 at 16. Although Padmore
initially argued that the weapons enhancement was unconstitutional, he withdrew the objection at
sentencing and did not raise it on appeal. R6 at 4-5, 6-8.
Therefore, to the extent that Padmore initially raised a Booker error in the district court, he
abandoned it. United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000). However, there is no
Sixth Amendment violation under Booker where a defendant admits to facts that enhanced his
sentence, United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005), and a plea agreement with
broad waiver language will preclude an appeal on Booker grounds. United States v. Grinard-Henry,
399 F.3d 1294, 1296 (11th Cir.) (per curiam), cert. denied, U.S. , 125 S. Ct. 2279 (2005).
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challenging his sentence under Blakely v. Washington, 542 U.S. , 124 S. Ct.
2531 (2004). We denied the motion and affirmed the denial of his motion to
withdraw his guilty plea.
In United States v. Dockery, 401 F.3d 1261 (11th Cir. 2005) (per curiam),
we addressed a similar situation: a remand from the Supreme Court with
instructions to reconsider our opinion in light of Booker in an appeal in which the
appellant did not raise either a constitutional or Apprendi challenge to his
sentence. Id. at 1262. We applied “‘our well-established rule that issues . . . not
timely raised in the briefs are deemed abandoned,’” reinstated our previous
opinion, and affirmed Dockery’s sentence. Id. at 1262-63 (quoting United States
v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001) (per curiam)). In his initial brief in
this case, Padmore failed to assert an Apprendi challenge to his sentence.
We reinstate our previous opinion in this case affirming the district court’s
denial of Padmore’s motion to withdraw his guilty plea and, upon reconsideration
in light of Booker, pursuant to the Supreme Court’s remand, affirm Padmore’s
sentence.
OPINION REINSTATED; SENTENCE AFFIRMED.
3