United States v. Dieuseul Meilleur

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
September 9, 2005
No. 04-10419 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 03-60111-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DIEUSEUL MEILLEUR,
Defendant-Appellant
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(September 9, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before TJOFLAT, DUBINA 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 (2005). We previously affirmed Meilleur’s
sentence. See United States v. Meilleur, No. 04-10419 (11th Cir. July 22, 2004)
(unpublished). The Supreme Court vacated our prior decision and remanded the
case to us for further consideration in light of Booker.
The procedural history of this case demonstrates that Meilleur did not
present a Sixth Amendment objection – or any other constitutional or legal
objection based on the issues addressed by the Supreme Court in Booker, or
Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004) – either in the district
court or in his initial brief to this court on appeal. Instead, the issue was not raised
until after Blakely was decided, and it was raised by way of a Rule 28(j) letter.
In United States v. Dockery, 401 F.3d 1261, 1262-63 (11th Cir. 2005), after
the Supreme Court’s remand with instructions to reconsider our opinion in light of
Booker, we relied on an earlier case of United States v. Ardley, 242 F.3d 989 (11th
Cir. 2001), in which we observed:
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.
2
Yardley, 242 F.3d at 990 (citations omitted). Thus, because Dockery had not
asserted an Apprendi (or its progeny) challenge to his sentence, we reinstated our
previous opinion. Dockery, 401 F.3d at 1263.
After our reconsideration of this case in light of Booker, we reinstate our
previous opinion in this case and affirm Meilleur’s sentence. Like the appellant in
Dockery, Meilleur did not assert Apprendi error (or its progeny) in his initial brief
on appeal.1
OPINION REINSTATED IN PART; SENTENCE AFFIRMED.
1
Even if Meilleur had timely raised the Booker issue in his initial appellate brief, we
would review the issue for plain error only. See United States v. Rodriguez, 398 F.3d 1291, 1298
(11th Cir. 2005).
Assuming arguendo that we conduct a plain error review, we conclude that application of
the plain error doctrine in Meilleur’s case would not require a vacatur of the sentence. While
Meilleur satisfies his burden of demonstrating the first two prongs of the plain error test, he
cannot satisfy the third and fourth prongs. Under the third prong, Meilleur has not demonstrated
that any error affected his substantial rights because he never contested the facts supporting his
sentence. United States v. Cotton, 535 U.S. 625, 633, 122 S. Ct. 1781, 1786 (2002). Moreover,
he cannot demonstrate that there is a reasonable probability of a different result if the guidelines
had been applied in an advisory instead of binding fashion. See Rodriguez, 398 F.3d at 1301.
Here, there is no record evidence indicating that the district court would have imposed a lower
sentence had the guidelines been advisory rather than mandatory. Indeed, the evidence is
directly contrary. Accordingly, Meilleur fails to demonstrate plain error.
3
TJOFLAT, Circuit Judge, specially concurring:
In this case, appellant was convicted of importing at least 500 grams of
cocaine into the United States. At sentencing, the district court found him
accountable for 4,272 grams of cocaine, 3,772 more grams than the jury’s verdict
established. Based on that finding and appellant’s criminal history category, the
court sentenced appellant under the Guidelines mandatory sentencing scheme to
prison for 121 months (at the high end of the guidelines sentence range). In doing
so, fashioning appellant’s sentence in this way, the court committed Booker error.
The court, however, citing United States v. Ardley, 242 F.2d 989 (11th Cir.
2001), reh’g denied, 272 F.3d 991 (11th Cir. 2001) (en banc), cert. denied, Ardley
v. United States, 535 U.S. 979 (2002), refuses to consider appellant’s Booker error
because appellant failed to assert the error in his opening brief on direct appeal. I
agree that the court is bound by Ardley and its progeny, and that, under that
precedent, appellant is deemed to have waived his Booker claim even though he
could not have known of its existence at the time he filed his opening brief. I
concur specially because I am convinced that Ardley was wrongly decided and that
we should entertain supplemental briefs on Booker’s application in this case. See
United States v. Higdon, 2005 U.S. App. LEXIS 15663, at *17 (11th Cir. July 8,
2005) (Tjoflat, dissenting from the denial of rehearing en banc).
4
In footnote 1, the court assuming that appellant is entitled to plain-error
review, holds that appellant has established Booker error and that the error is plan.
He would not be entitled to relief, though, because he “has not demonstrated that
[the] error affected his substantial rights because he never contested the facts
supporting his sentence . . . and . . . cannot demonstrate that there is a reasonable
probability of a different result if the guidelines had been applied in an advisory
instead of binding fashion. See Rodriguez, 398 F.3d at 1301.” Ante at ___. I
agree that Rodriguez imposes on a defendant standing in appellant’s shoes the
burden of proof on this prejudice issue, and that he cannot satisfy that burden
unless he can point to evidence in the record—specifically, something the court
said at sentencing—indicating that the court, had it been operating under the
sentencing model Booker has established, would have imposed a different
sentence, one more favorable to the defendant. How the court could have
anticipated the Booker model and all of its ramifications escapes me, which is why
disagree with this approach to the prejudice issue. See United States v. Rodriguez,
406 F.3d 1261, 1281 (11th Cir. 2005) (Tjoflat, dissenting from the denial of
rehearing en banc); United States v. Thompson, No. 04-12218, 2005 WL 2099784,
at * 1`7-19 (11th Cir. Sept. 1, 2005) (Tjoflat J., dissenting).
5