United States v. Gerald Eugene Bennett

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 5, 2005
No. 03-11060
THOMAS K. KAHN
CLERK
D.C. Docket No. 02-00116-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERALD EUGENE BENNETT,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Alabama
(May 5, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before MARCUS and WILSON, Circuit Judges, and DUPLANTIER*, District
Judge.
*Honorable Adrian G. Duplantier, United States District Judge for the Eastern District of
Louisiana, sitting by designation.
PER CURIAM:
On direct appeal this court affirmed Eugene Bennett’s convictions and sentence.
United States v. Bennett, 368 F.3d 1343 (11th Cir. 2005). The Supreme Court vacated
that judgment, remanding the case “for further consideration in light of Booker v.
United States, 543 U.S. (2005).”
In his initial brief, Bennett urged that in sentencing him the district court erred
in the following respects:
• calculating the drug quantity, and resulting offense level, by
relying on the testimony of an unqualified expert witness and
determining that the methamphetamine involved in Bennett’s
dealing with Timothy Brown constituted relevant conduct under
U.S.S.G. § 1B1.3;
• enhancing the offense level by two levels for obstruction of justice
pursuant to U.S.C.G. §3C1.1;
• enhancing the offense level by three levels after determining that
there
were five or more participants in the offense conduct; and
• enhancing the offense level based upon the official status of
Deputy
Cuthkelvin.
Bennett did not raise any constitutional challenge to his sentence, nor did he assert
error premised 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. Counsel
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for Bennett untimely raised an issue pursuant to Blakely v. Washington, 542 U.S.
, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) in a motion to supplement his petition
for rehearing which was received by the Clerk’s Office on the same date that rehearing
was denied. Thereafter, counsel for Bennett filed a supplemental authority letter in
which, relying on the Seventh Circuit’s opinion in United States v. Booker, 375 F.3d
508 (7th Cir. 2004), he urged that Blakely “does apply to the Federal Sentencing
Guidelines, and that it was plain error for the district court to enhance Bennett’s
sentence. . . .” Those notifications were untimely and do not “cure” Bennett’s failure
to assert a constitutional challenge to his sentence in his initial brief. See United
States v. Njau, 386 F.3d 1039, 1042 (11th Cir. 2004).
In United State v. Ardley, 242 F.3d 989 (11th Cir.), cert. denied, U.S.
, 121 S.Ct. 2621, L.Ed.2d (2001), in addressing a remand from the
Supreme Court with instructions to reconsider the opinion in light of Apprendi, the
court noted:
[n]othing 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 through
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
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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.”). That reasoning applies equally here, where there is an
untimely challenge based on United States v. Booker, U.S. , 125 S.Ct. 738,
160 L.Ed.2d 621 (2005). United States v. Dockery, 401 F.3d 1261, 1262 (11th Cir.
2005).
Accordingly, we reinstate our previous opinion in this case and affirm, once
again, Bennett’s sentence after our reconsideration in light of Booker, pursuant to the
Supreme Court’s mandate.
OPINION REINSTATED; SENTENCE AFFIRMED.
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