United States v. Leroy Coaxum

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
August 18, 2005
No. 03-15289 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-60107-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEROY COAXUM
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 18, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before ANDERSON, DUBINA and PRYOR, 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 Appellant’s conviction. See United States v. Coaxum, 107 Fed.Appx.
893 (11th Cir. 2004) (unpublished).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 once again affirm Appellant’s sentence.
Appellant Leroy Coaxum appeals his 41-month sentence for conspiracy to
defraud the United States in violation of 18 U.S.C. § 371. As he readily concedes,
Coaxum did not raise any challenge to his sentence under Apprendi, Blakely, or
the Sixth Amendment to the district court or on direct appeal. Instead, for the first
time, he raised the argument that his sentence was unconstitutional in his petition
for writ of certiorari.
Appellant’s failure to timely raise an argument challenging his sentence on
these grounds is fatal to this appeal.
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
2
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 instant case, the remand instructions do not require a different
conclusion. Because Coaxum failed to timely raise a constitutional challenge to
his sentence or any challenge to his sentence based upon Apprendi or any case
applying the principle of Apprendi, he has abandoned this argument. Thus, in
considering this case in light of Booker and in applying our prudential rules (as
Booker instructs us to do), we affirm Coaxum’s sentence for the reasons outlined
herein and in our prior opinion. We also reinstate our prior opinion affirming
Coaxum’s sentence. Coaxum, 107 Fed.Appx. 893.
OPINION REINSTATED; SENTENCE AFFIRMED.
3