United States v. Silvio De La Ossa

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-11370 SEPTEMBER 20, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-20834-CR-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SILVIO A. DE LA OSSA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 20, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before TJOFLAT, BIRCH and MARCUS, Circuit Judges.
PER CURIAM:
This case is before us for consideration in light of United States v. Booker,
543 U.S. , 125 S. Ct. 738 (2005). De La Ossa v. United States, U.S. , 125 S.
Ct. 1426 (2005). We previously affirmed De La Ossa’s conviction and sentence.
United States v. De La Ossa, No. 04-11370 (11th Cir. Oct. 26, 2004). The
Supreme Court vacated our prior decision and remanded the case to us for further
consideration in light of Booker.
In his initial brief on appeal, De La Ossa had argued that the district court
erred by denying him a minor-role reduction. He did not raise a Sixth Amendment
objection or any other constitutional or legal objection based on the issues
addressed by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), or
any other case extending or applying the Apprendi principle, in his initial brief or
in any other manner before this court.1
In United States v. Dockery, 401 F.3d 1261 (11th Cir. 2005) (per curiam),
we addressed a similar situation: a remand from the Supreme Court with
instructions to consider our opinion in light of Booker in an appeal in which the
appellant did not raise either a constitutional or Apprendi challenge to his sentence.
Id. at 1262. We applied “our well-established rule that issues . . . not timely raised
in the briefs are deemed abandoned,” reinstated our previous opinion, and affirmed
1
By extension, an issue raised under Apprendi raises an issue pursuant to Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004) and Booker. See United States v. Grant, 397
F.3d 1330, 1331 (11th Cir. 2005).
2
Dockery’s sentence. Id. at 1262-63 (citation omitted). Such is the procedure that
we will follow in this case because De La Ossa failed to raise an Apprendi
challenge to his sentence in his initial brief.2
We reinstate our previous opinion and, upon reconsideration in light of
Booker, pursuant to the Supreme Court’s remand, affirm De La Ossa’s sentence.
2
We have held that the application this prudential rule, in which we treat issues not raised
in a party’s initial brief as abandoned, to foreclose an untimely Booker claim “does not result in
manifest injustice.” United States v. Levy, F.3d. , (11th Cir. Jul 12, 2005).
3
TJOFLAT, Circuit Judge, specially concurring:
Binding precedent beginning with United States v. Ardley, 242 F.3d 989,
reh’g en banc denied, 273 F.3d 991 (11th Cir. 2001), and including United States
v. Dockery, which the court relies on, bars us from considering appellant’s Booker
claim because he did not raise it in his initial brief. I therefore concur in the court’s
judgment. As I have stated before, though, most recently in United States v.
Higdon, 2005 U.S.App. LEXIS 15663, at *17 (11th Cir. July 8, 2005) (Tjoflat, J.,
dissenting from the denial or rehearing en banc), Ardley and its progeny were
wrongly decided. Thus, were we writing on a clean slate, I would entertain
appellant’s Booker claim on the merits.
4