United States v. Isiash Rieco Keyes

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 31, 2006
No. 05-12339
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-00257-CR-CC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISIASH RIECO KEYES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 31, 2006)
Before DUBINA, HULL and WILSON, Circuit Judges.
PER CURIAM:
Isiash Rieco Keyes appeals his 181-month sentence imposed after he was
convicted of bank robbery, in violation of 18 U.S.C. § 2113(a) and (d) (“Count
One”), and use of a firearm during the commission of the crime, in violation of 18
U.S.C. § 924(c) (“Count Two”). Keyes was originally found guilty not only on
Counts One and Two, but also on a separate count of carjacking (“Count Three”),
and was sentenced to a total of 219 months’ imprisonment, the bottom-end of the
Guidelines range.1 On appeal, however, we vacated Keyes’s conviction for
carjacking as well as his sentence, and remanded for resentencing “limited to
correcting any errors resulting from the erroneous carjacking conviction.” United
States v. Keyes, No. 02-10419 (11th Cir. July 18, 2002) (unpublished). At
resentencing, the district court readjusted the Guidelines offense level in order to
comply with our mandate, and again sentenced Keyes at the bottom of the
Guidelines range, to a total of 181 months.2 As Keyes was not advised of his right
to appeal this sentence, however, he moved for a new judgment in order to protect
his right of appeal. The district court granted the motion and Keyes then filed a
notice of appeal. We vacated the district court’s order, however, so that it could
enter a new judgment pursuant to the procedural requirements of United States v.
Phillips, 225 F.3d 1198 (11th Cir. 2000). The district court then conducted a third
1
The district court sentenced Keyes to 135 months on Counts One and Three, to be served
concurrently, and 84 months on Count Two, to be served consecutively to the sentence imposed on
Counts One and Three.
2
The district court sentenced Keyes to 97 months on Count One, with a consecutive sentence
of 84 months on Count Two.
2
resentencing, and imposed a sentence identical to that imposed at the previous
resentencing.
On appeal from his third resentencing, Keyes asserts–for the first time–that
the district court erred in enhancing his sentence, under a mandatory Guidelines
regime, based on facts that were neither admitted by him nor found by a jury, in
violation of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d
621 (2005). Keyes also claims that his trial counsel’s failure to raise a
constitutional objection at sentencing denied him effective assistance of counsel.
Keyes could have raised his present constitutional objections in his first
appeal, but failed to do so.3 Thus, he cannot raise them now. See United States v.
Dockery, 401 F.3d 1261, 1262-63 (11th Cir.) (per curiam) (deeming Booker issue
abandoned where, in initial appeal, appellant did not raise a constitutional
challenge to his sentence or assert error based on Apprendi, or any case extending
or applying the Apprendi principle), cert. denied, __ U.S. __, 126 S. Ct. 442, 163
L. Ed. 2d 336 (2005); United States v. Vanorden, 414 F.3d 1321, 1323 (11th Cir.)
(per curiam) (“Because Van Orden did not challenge his sentence on Sixth
Amendment-Apprendi-Blakely-Booker grounds in his first trip through this circuit,
this argument is ‘deemed abandoned.’”), cert. denied, __ U.S. __, 126 S. Ct. 633,
3
Although Keyes did object to the application of various sentencing enhancements before
the district court in his first appeal, he did not do so on constitutional grounds.
3
__ L. Ed. 2d __ (2005); United States v. Nunez, No. 04-10463 (11th Cir. June 28,
2005) (per curiam) (unpublished) (“[W]e 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 his sentence in his
initial briefs in his two prior appeals.”).
We decline to consider Keyes’s ineffective assistance of counsel claim, on
which a factual record has not been properly developed in the district court. See
United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002).
AFFIRMED.
4