United States v. Victor Padilla

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-11086 ELEVENTH CIRCUIT
MAY 11, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 03-20907-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
VICTOR PADILLA,
a.k.a. Victor Manuel Padilla,
Defendant-Appellee.
__________________________
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 BLACK, MARCUS and PRYOR, 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, 160 L. Ed. 2d 621 (2005). We previously
affirmed Appellant’s 46-month sentence, imposed after his plea of guilty, for
conspiracy to import 100 kilograms or more of marijuana, in violation of 21 U.S.C.
§§ 952(a), 960(b)(2). See United States v. Padilla, Case No. 04-11086 (11th Cir. Dec.
29, 2004) (unpublished).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, Appellant argued that, because he was a hired employee and
did not have an ownership interest in the marijuana he attempted to import or the
vessel which he used in this smuggling attempt, the district court erred by denying his
request for a two-level reduction in offense level for playing a minor role in the
offense, pursuant to U.S.S.G. § 3B1.2. Notably, he raised no constitutional
sentencing challenge, nor did he otherwise assert error based on Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), or any other case
extending or applying the Apprendi principle.
In United States v. Ardley, 242 F.3d 989 (11th Cir.), cert. denied, 121 S. Ct.
2621 (2001), after the Supreme Court’s remand with instructions to reconsider our
opinion in light of Apprendi, we observed the following:
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
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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.
Id. at 990 (citations omitted); see also United States v. Nealy, 232 F.3d 825, 830
(11th Cir. 2000) (“Defendant abandoned the [Apprendi] indictment issue by not
raising the issue in his initial brief.”). We recently extended the foregoing rule to
preclude untimely challenges based on Booker. See United States v. Dockery, 401
F.3d 1261 (11th Cir. 2005).
In his initial brief in this case, Padilla asserted no Apprendi (or its progeny)
challenge to his sentence. Accordingly, we reinstate our previous opinion in this case
and affirm, once again, Padilla’s sentence after our reconsideration in light of Booker,
pursuant to the Supreme Court’s mandate.
OPINION REINSTATED; SENTENCE AFFIRMED.
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