United States v. Victor Garry Baxter

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
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U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-16578 October 14, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 02-60200-CR- UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR GARRY BAXTER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 14, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES OF AMERICA
Before TJOFLAT, ANDERSON and MARCUS, Circuit Judges.
PER CURIAM:
This case is before the Court for consideration in light of United States v.
Booker, 543 U.S. __, 125 S. Ct. 738, __ L. Ed. 2d __ (2005). We previously
affirmed Appellant’s convictions and 360-month sentence, as well as the
imposition of a $10,000 fine, for distribution, in violation of 21 U.S.C. §
841(a)(1), (b)(1)(B), and possession with intent to distribute cocaine (powder), in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). See United States v. Baxter, Case
No. 02-16578 (11th Cir. Jan. 4, 2005) (unpublished). The Supreme Court vacated
our prior decision and remanded the case to us for further consideration in light of
Booker.
In his initial brief, Appellant challenged the denial of his motion to
suppress, the sufficiency of the evidence to support his conviction, and the district
court’s imposition of a $10,000 fine. Notably, Appellant did not assert 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 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
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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 extended the foregoing rule to preclude
untimely challenges based on Booker. See United States v. Dockery, 401 F.3d
1261 (11th Cir. 2005), cert. denied, No. 05-5714 (Oct. 11, 2005). In his initial
brief in this case, Appellant asserted no such Apprendi (or its progeny) challenge
to his sentence. Accordingly, we reinstate our previous opinion in this case and
affirm, once again, Appellant’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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TJOFLAT, Circuit Judge, specially concurring:
The court declines to consider appellant’s Booker claim on the merits
because appellant failed to present the claim in his initial brief on appeal. Binding
precedent, United States v. Ardley, and United States v. Dockery, which the court
properly cites, requires us to disregard the claim for that reason. I therefore concur
in the court’s judgment. Were we no bound by such precedent, I would, for the
reasons I have previously expressed, entertain appellant’s Booker claim on the
merits. See United States v. Higdon, 2005 U.S.App. LEXIS, at *17 (11th Cir. July
8, 2005).
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