United States v. Javier Lopera

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 11, 2005
No. 03-14650
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 02-20867-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER LOPERA,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(May 11. 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before BIRCH, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
This case is before the Court for consideration in light of United States v.
Booker, 125 S. Ct. 738 (2005). We previously affirmed in part, and vacated and
remanded in part Lopera’s conviction. See United States v. Lopera, Case No. 03-
14650 (11th Cir. Jul. 8, 2004) (unpublished). The Supreme Court vacated our
prior decision and remanded the case to us for further consideration in light of
Booker.
On direct appeal, Lopera did not challenge his sentence and did not assert
error based on Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), or any other case
extending or applying the Apprendi principle. However, after the opinion in his
case was issued, Lopera sought rehearing based on Blakely v. Washington, 124 S.
Ct. 2531 (2004). We denied the petition for rehearing.
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 our earlier case of United States v. Ardley, 242 F.3d 989(11th Cir.), cert. denied, 121 S. Ct. 2621 (2001), which 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
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our well-established rule that issues and contentions not timely raised
in the briefs are deemed abandoned.
Ardley, 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.
In United States v. Levy, 379 F.3d 1241 (11th Cir. 2004), Levy sought to
raise a Blakely issue on petition for rehearing, although he had never made an
Apprendi-based argument in his initial brief. Id. at 1241–42. We held that Levy
waived his Blakely claim by not raising it in his initial brief on appeal. Id. at 1245.
Because Lopera did not assert error based on Apprendi (or its progeny) in
his initial brief on appeal, we reinstate our previous opinion in this case and affirm
Lopera’s conviction and sentence after our reconsideration in light of Booker,
pursuant to the Supreme Court’s mandate. However, because the judgment
contains a clerical error in stating that Lopera was convicted of violating “8 U.S.C.
§ 1324(b)(1)(B)(I)” instead of “8 U.S.C. § 1324(b)(1)(B)(i),” we vacate and
remand with instructions for the district court to replace “(I)” with “(i).”
OPINION REINSTATED IN PART; AFFIRMED IN PART, AND
VACATED AND REMANDED IN PART.
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