United States v. Vincent Lee Ferguson

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
------------------------------------------- FILED
No. 03-13803 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Non-Argument Calendar March 17, 2006
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 02-60069-CR-FAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VINCENT LEE FERGUSON,
Defendant-Appellant.
----------------------------------------------------------------
Appeal from the United States District Court
for the Southern District of Florida
----------------------------------------------------------------
(March 17, 2006)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before EDMONDSON, Chief Judge, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
This case is before the Court for consideration in the light of United States
v. Booker, 125 S.Ct. 738 (2005). We previously affirmed Appellant’s convictions
and sentences for cocaine importation, 21 U.S.C. § 952(a), and possession with
intent to distribute cocaine, 21 U.S.C. § 841(a)(1). See United States v. Ferguson,
No. 03-13803 (11th Cir. Jan. 10, 2004) (unpublished). The Supreme Court
vacated our prior decision and remanded the case to us for further consideration in
the light of Booker.
In his initial brief on direct appeal, Appellant challenged his convictions,
but not his sentences. And Appellant did not assert error based on Apprendi v.
New Jersey, 120 S.Ct. 2348 (2000), or any case extending or applying the
Apprendi principle. Appellant first mentioned a Booker-based sentencing claim in
his petition for rehearing, which we denied. 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 the light of
Apprendi, we declined to review the Apprendi issue because it was not presented
in the appellant’s initial brief. 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”). Recently,
we applied Ardley to a post-Booker remand and determined that the defendant had
2
abandoned his Booker claim because he failed to raise it at the district court or in
his initial brief. See United States v. Dockery, 401 F.3d 1261, 1262-63 (11th
Cir.), cert. denied, 126 S.Ct. 442 (2005).
Appellant did not assert error based on Apprendi (or its progeny) in his
initial brief on appeal. We, thus, reinstate our previous opinion in this case and
affirm Appellant’s convictions and sentences after our reconsideration in the light
of Booker, pursuant to the Supreme Court’s mandate.
OPINION REINSTATED; CONVICTIONS AND SENTENCES
AFFIRMED.
3