United States v. John F. Triplett

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 10, 2005
No. 03-14099 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00718-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN F. TRIPLETT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 10, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
This case is before the court for consideration in light of United States v.
Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). We previously affirmed Triplett’s
conviction and sentence. See United States v. Triplett, No. 03-14099 (11th Cir.
Feb. 25, 2004) (unpublished). The Supreme Court vacated our prior decision and
remanded the case to us for further consideration in light of Booker.
Triplett did not raise a Sixth Amendment objection – or any other
constitutional or legal objection based on the issues addressed by the Supreme
Court in Booker, or Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004) –
either in the district court or in this court on appeal of his conviction and sentence.
Nor did Triplett dispute any of the underlying facts on which his sentence rested.
Following our affirmance of Triplett’s conviction and sentence, Triplett petitioned
for rehearing, but again did not raise any Booker/Blakely claim. This court denied
the petition for rehearing on April 26, 2004.
Triplett filed a petition for writ of certiorari in the United States Supreme
Court on July 22, 2004, in which he raised as an issue for the first time “[w]hether
or not judicial enhancements pursuant to the United States Sentencing Guidelines
constitute a denial of the Sixth Amendment right to trial by jury.”
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
2
Booker, we relied on our earlier case of United States v. Ardley, 242 F.3d 989
(11th Cir. 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 our well-established rule that issues and contentions not
timely raised in the briefs are deemed abandoned.
Yardley, 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.
After our reconsideration of this case in light of Booker, we reinstate our
previous opinion in this case and affirm Triplett’s conviction and sentence. Like
the appellant in Dockery, Triplett did not assert Apprendi error (or its progeny) in
his initial brief on appeal.
OPINION REINSTATED IN PART; CONVICTION AND SENTENCE
AFFIRMED.
3