United States v. Bennie F. McCombs, II

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-15611 September 22, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00055-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENNIE F. McCOMBS, II,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(September 22, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before TJOFLAT, ANDERSON and MARCUS, 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 (2005). We previously affirmed. See United States
v. McCombs, No. 0315611 (11th Cir. July 30, 2005) (unpublished). The Supreme
Court vacated our prior decision and remanded the case to us for further consideration
in light of Booker. Appellant challenges his 87-month sentence, imposed pursuant
to his guilty plea to possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g). In his initial brief, McCombs argued that the district court plainly
erred by violating Rule 11 of the Federal Rules of Criminal Procedure because the
court failed to advise him during his plea colloquy of (1) the mandatory $100 special
monetary assessment, (2) the right to counsel at sentencing, and (3) the right to testify
and present evidence at trial.
Appellant did not raise a constitutional challenge to his sentence, nor did he
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 his initial brief. McCombs first mentioned a constitutional sentencing error in his
petition for rehearing en banc. In United States v. Ardley, 242 F.3d 989 (11th Cir.),
cert. denied, 533 U.S. 962, 121 S.Ct. 2621, 150 L.Ed.2d 774 (2001), after the
Supreme Court's remand with instructions to reconsider our opinion in light of
Apprendi, we declined to review the Apprendi issue because it was not presented in
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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 found that the defendant had abandoned his
Booker claim because he failed to raise it at the district court or in his initial brief.
United States v. Dockery, __F.3d__, 2005 WL 487735 (11th Cir. Mar. 3, 2005). Our
opinion affirming sentence in this case is accordingly REINSTATED.
TJOFLAT, Circuit Judge, specially concurring:
United States v. Ardley and its progeny require that we treat appellant as
having waived/abandoned his Booker claim because his lawyer failed to raise it in his
initial brief on appeal. 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 claim. See United States v. Higdon, 2005 U.S.App. LEXIS, at *17 (11th
Cir. July 8, 2005) (Tjoflat, J., dissenting from the denial of rehearing en banc).
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