United States v. Cederick Deon Swasey

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-15026 JULY 7, 2005
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 02-80203-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CEDERICK DEON SWASEY,
CHARLIE LAWRENCE,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(July 7, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before DUBINA, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
This case is before the Court for consideration in light of United States v.
Booker, __ U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). We previously
affirmed Appellants’ convictions. See United States v. Swasey, 112 Fed.Appx. 5(11th Cir.2004) (unpublished). The Supreme Court vacated our prior decision and
remanded the case to us for further consideration in light of Booker. For the
reasons that follow, we affirm Appellants’ sentences.
Appellants Charlie Lawrence (“Lawrence”) and Cederick D. Swasey
(“Swasey”) appeal their 70-month sentences for conviction as to Count 1 of the
indictment (armed robbery, in violation of 18 U.S.C. §§ 2113 (a), (d)) and a
consecutive 84-month sentence for conviction under Count 2 (using a firearm
during a crime of violence, in violation of 18 U.S.C. § 924 (c)(1)(A)(ii)). Neither
Lawrence nor Swasey raised any challenge to their sentences on direct appeal
under Apprendi, Blakely, or the Sixth Amendment. Instead, Lawrence for the first
time raised the argument that his sentences were unconstitutional in his petition
for certiorari. Swasey raised the issue for the first time in his petition for rehearing
en banc.
Appellants’ failure to timely raise an argument challenging their sentences
is fatal to this appeal.
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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.
United States v. Dockery, 401 F.3d 1261, 1262-63 (11th Cir. 2005) (considering
the case in light of United States v. Booker, __ U.S. __, 125 S. Ct. 738, 160 L. Ed.
2d 621 (2005) and holding appellant abandoned challenge to his sentence because
he did not raise the issue in his initial brief on appeal) (quoting United States v.
Ardley, 242 F.3d 989, 990 (11th Cir. 2001)); see also United States v. Sears,
__F.3d__, No. 03-16550, 2005 WL 1334892, at *1 (11th Cir. June 8, 2005)
(same).
In the present case, the remand instructions do not demand a different
conclusion. Because Lawrence and Swasey failed to timely raise a constitutional
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challenge to their sentences or any challenge to their sentences based upon
Apprendi or any case applying the principle of Apprendi, they have abandoned this
argument. Thus, we affirm Appellants’ sentences.
AFFIRMED.
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