[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-10655 NOVEMBER 2, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 01-00239-CR-J-21-HTS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY JOHNSON,
a.k.a. Carl M. Neely,
a.k.a. Reginald S. Daniels,
a.k.a. William Fritz,
a.k.a. Maurice J. Nutt,
DARREN LAMONT KEYS,
a.k.a. Roderick Bremby,
a.k.a. Mark R. Estep,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 2, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before TJOFLAT, MARCUS and COX, Circuit Judges.
PER CURIAM:
This case is before the court for reconsideration in light of United States v.
Booker, __ U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). A jury found the
defendant guilty of multiple counts involving fraud, identity theft, and conspiracy,
and sentenced him to a total of 137 months’ imprisonment and 60 months’
supervised release. We previously affirmed the defendant’s convictions and
sentences. See United States v. Johnson, 97 Fed. Appx. 904 (11th Cir. 2004)
(Table Decision). The Supreme Court vacated our prior decision and remanded
the case to us for reconsideration in light of Booker. Keys v. United States, 125 S.
Ct. 1052 (2005). For the reasons that follow, we reinstate our prior decision
affirming the defendant’s convictions and sentences.
Our circuit precedent holds that any argument not raised in a party’s initial
brief is considered abandoned. United States v. Dockery, 401 F.3d 1261, 1262-63
(11th Cir. 2005), cert. denied, Case No. 05-5714 (Oct. 11, 2005). The Booker
decision did nothing to abrogate that well-settled rule. United States v. Ardley,
242 F.3d 989, 990 (11th Cir. 2005). In his initial appellate brief, the defendant
raised three issues: (1) insufficiency of the evidence, (2) noncompliance with
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U.S.S.G. §4A1.3 in issuing an upward sentencing departure, and (3) violation of
the Due Process Clause due to insufficient notice of the Government’s intent to
seek an upward departure. Nowhere in the defendant’s initial appellate brief did
he raise any issue regarding the constitutionality of the United States Sentencing
Guidelines or the violation of his Sixth Amendment right to trial by jury. Nor did
the defendant rely on or even refer to Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348 (2000), or its progeny. Thus, the defendant abandoned his Booker
argument. Accordingly, we reinstate our prior opinion affirming the defendant’s
convictions and sentences.
OPINION REINSTATED; CONVICTIONS AND SENTENCES
AFFIRMED.
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TJOFLAT, Circuit Judge, specially concurring:
The court declines to consider appellant’s Booker claim on the merits
because appellant failed to present the claim in his initial brief on appeal. Binding
precedent requires us to disregard the claim for that reason. See United States v.
Dockery, 401 F.3d 1261, 1262-63 (11th Cir. 2005). I therefore concur in the
court’s judgment.
Were we writing on a clean slate, I would, for the reasons I have previously
expressed, see United States v. Higdon, 418 F.3d 1136, 1142 (11th Cir. 2005)
(Tjoflat, J., dissenting from the denial of rehearing en banc), entertain appellant’s
Booker claim on the merits. Otherwise, the claim will likely resurface in a
proceeding initiated by appellant pursuant to 28 U.S.C. § 2255, in which he
contends that his lawyer denied him effective assistance of counsel when he failed
to anticipate Booker’s holding and include a Booker-type claim in his initial brief.
See United States v. Vanorden, 414 F.3d 1321, 1323 (11th Cir. 2005) (Tjoflat, J.,
specially concurring). It is obvious, at least to me, that it would be far more
efficient to entertain the ineffective-assistance claim now rather than require the
district court to hear and rule on the claim which, if denied, would certainly be
back on our doorstep with an application for a certificate of appealability (if the
district court failed to grant one) and a full-blown appeal.
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