United States v. Craig Cesal

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-15090 JULY 13, 2005
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 02-00030-CR-01-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRAIG CESAL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 13, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
Last year, we affirmed Cesal’s conviction for being a participant in a
conspiracy to distribute marijuana. United States v. Cesal , 391 F.3d 1172 (11th
Cir. 2004). We dismissed Cesal’s appeal to the extent that it challenged the
sentence imposed for that conviction, on the basis that he had validly waived his
right to appeal his sentence in his plea agreement. Id. at 1182. The case is now
back before us on remand from the Supreme Court for further consideration in
light of Booker v. United States, 543 U.S. __, 125 S. Ct. 738 (2005).
Cesal did not raise any Apprendi/Blakely/Booker issues in his initial brief to
this Court. (He did attempt to raise the issue in his reply brief, but we struck those
portions of his brief.) Cesal’s failure to raise the issue in his initial brief bars him
from doing so now. See United States v. Vanorden, __ F.3d __, No. 03-11083,
2005 WL 1531151 (11th Cir. June 30, 2005); United States v. Dockery, 401 F.3d
1261, 1262–63 (11th Cir. 2005) (per curiam); United States v. Ardley, 242 F.3d
989, 990 (11th Cir. 2001) (per curiam). The instructions in the Supreme Court’s
remand order do not compel a different conclusion. See United States v. Ardley,
273 F.3d 991, 994–96 (11th Cir. 2001) (Carnes, J., joined by Black, Hull, and
Marcus, JJ., concurring in the denial of rehearing en banc).
Moreover, we have already concluded that Cesal knowingly and voluntarily
waived his right to challenge his sentence by his plea agreement. Cesal, 391 F.3d
2
at 1182. That waiver included a waiver of the right to challenge his sentence based
on Booker error. See United States v. Rubbo, 396 F.3d 1330, 1335 (11th Cir.
2005) (“[T]he right to appeal a sentence based on Apprendi/Booker grounds can be
waived in a plea agreement. Broad waiver language covers those grounds of
appeal.”).
Accordingly, we reinstate our previous opinion in this case affirming Cesal’s
conviction and dismissing the portions of his appeal relating to his sentence.
OPINION REINSTATED; AFFIRMED.
3