United States v. Lesly Alexis

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-13921 October 13, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 02-00094-CR-3-RV-003
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LESLY ALEXIS
a.k.a. “X”, etc.,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Northern District of Florida
________________________
(October 13, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before TJOFLAT, BLACK and MARCUS, 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 Alexis’ conviction and
sentence. See United States v. Alexis, Case No. 03-13921 (11th Cir. Dec. 1, 2004)
(unpublished). The Supreme Court vacated our prior decision and remanded the
case to us for further consideration in light of Booker.
In his initial brief on direct appeal, Alexis 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, Alexis sought permission to file a
supplemental brief to present additional arguments concerning Blakely v.
Washington, 124 S. Ct. 2531 (2004). We granted Alexis’ motion, but the
Government asked for reconsideration. We granted reconsideration on September
8, 2004, and decided to consider the case on the briefs previously filed.
In United States v. Sears, 411 F.3d 1240, 1241 (11th Cir. 2005), a case with
a procedural history similar to this one, we held that Booker did not require us to
alter our prior decision because Sears did not raise a Booker issue in his initial
brief, was denied leave to file a supplemental brief raising Booker, and nothing in
the Supreme Court’s remand order demanded a different conclusion. The same
reasoning holds in this case.
2
Because Alexis 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
Alexis’ conviction and sentence after our reconsideration in light of Booker,
pursuant to the Supreme Court’s mandate.
OPINION REINSTATED IN PART; AFFIRMED IN PART.
3
TJOFLAT, Circuit Judge, specially concurring:
The court declines to consider appellant’s Booker claim on the merits
because appellant failed to present the claim in his initial brief on appeal. Binding
precedent requires us to disregard the claim for that reason. See United States v.
Ardley, 242 F.3d 989, reh’g en banc denied, 273 F.3d 991 (11th Cir. 2001), and
its progeny, e.g., United States v. Sears, 411 F.3d 1240 (11th Cir. 2005). I
therefore concur in the court’s judgment. Were we writing on a clean slate, I
would, for the reasons I have previously expressed, entertain appellant’s Booker
claim on the merits. See United States v. Higdon, 2005 U.S.App. LEXIS, at *17
(11th Cir. July 8, 2005).
4