[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
August 25, 2005
No. 03-14620 THOMAS K. KAHN
CLERK
Non-Argument Calendar
________________________
D.C. Docket No. 03-00060-CR-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC MARTIN,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(August 25, 2005)
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before ANDERSON and WILSON, Circuit Judges, and SHAPIRO*, District
Judge.
PER CURIAM.
Eric Martin (“Martin”) appealed his conviction and sentence for possession
of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). We
affirmed his conviction and sentence. United States v. Martin, 2004 WL 1002909
(11th Cir. April 24, 2004). The Supreme Court of the United States vacated the
judgment and remanded the case to this court for further consideration in light of
United States v. Booker, 125 S.Ct. 738 (2005) (“Booker”). Martin v. United
States, 125 S.Ct. 1040 (2005).
I. FACTS AND PROCEDURAL HISTORY
The facts of Martin’s crime are described in Martin, 2004 WL 1002909:
On September 6, 2001, law enforcement officers Kelvin Mitchell
(“Mitchell”) and Jason Powell (“Powell”), assigned to the Second
Judicial Circuit Drug Task Force, were looking for Martin. The
officers saw Martin’s Cadillac parked at an apartment complex where
Richard Watson lived. When the officers approach Martin, he was
standing near his car and hollowing out a cigar; there was a small bag
of marijuana and a razor blade on the truck of his car. Watson and
Martin had previously arranged to meet at Watson’s residence and
were preparing a marijuana blunt to smoke when the officers arrived.
Mitchell asked Martin whether the marijuana belonged to him;
*
Honorable Norma L. Shapiro, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
2
Martin responded in the affirmative. Mitchell placed Martin in
handcuffs, patted him down for weapons and put him in the patrol
car.
After placing the marijuana and razor blade in evidence bags,
Mitchell returned to Martin’s car. A small-caliber piston wedged
between the driver’s seat and the console was in plain view through
the open driver’s window. Mitchell photographed the gun, removed
it from the car and unloaded it.
Martin was convicted of possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1). The pre-sentence investigation report
calculated the base offense level under the United States Sentencing Guidelines
(“U.S.S.G.”) at 20, but added four points for use or possession of a firearm in
connection with another felony offense under U.S.S.G. § 2k2.1(b)(5) because
Martin was in possession of marijuana.1 The total offense level of 24, together
with Martin’s criminal history of Level IV, yielded a U.S.S.G. sentencing range of
77 to 96 months. Had Martin not received the four-point enhancement, the
U.S.S.G. sentencing range would have been 51 to 63 months.
At the sentencing hearing, Martin objected to the four-point enhancement
and argued that considering possession of marijuana as a felony for sentencing
1
Simple possession of a small quantity marijuana is not ordinarily a felony, but Martin
had a prior conviction for possession of marijuana, so the instant possession was punishable by
more than one year in prison under 21 U.S.C. § 844(a). Martin was not charged with a felony for
the marijuana possession; he was charged in state court with a misdemeanor.
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purposes was unduly harsh. The court agreed with counsel for Martin that the
four-point enhancement was harsh:
COURT: I have studied this matter carefully, because I have to agree
with you, Mr. Butler, that it seems to be a harsh result of the
possession of an amount that would, without prior conviction, be a
misdemeanor, and a possession of an amount for personal use for
which the defendant was never charged as [sic] a substantial amount
to his sentence.
Sentencing Hearing Transcript at 6. Nonetheless, the court told Martin it was
constrained by law to apply the enhancement.
COURT: I’ve looked to see if there was any law to the contrary, as
you have. I’ve come up with the same results that you came up with,
and that’s that this is what the law requires. I’m going to make
factual findings and conclusions of law on this. And I don’t know
whether – yes, you have the right to appeal in this case. And it may
be something that the circuit will consider. It’s not something that I
can consider at the trial level.
Id. The district court made a factual finding that Martin possessed the firearm in
connection with possession of marijuana under U.S.S.G. § 2k2.1(b)(5), and
overruled Martin’s objection:
COURT: So based on those findings, it is my finding that the law
requires me and that I have no discretion to do anything other than to
give the four-point enhancement on this. So I overrule the objection.
The court sentenced Martin to imprisonment for 85 months, slightly below the
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midpoint of the recommended range of 77 to 96 months.2 The court justified the
sentence based on Martin’s criminal history:
COURT: Under all the circumstances of this case, I’m not going to
sentence as high as was recommended, but I cannot ignore the fact
that this defendant has a criminal history category of IV. I can’t, in
good conscience, sentence the defendant at the low end of the
guidelines with this type of criminal history. However, within the
discretion that I have to sentence within the guideline range, I feel
that an appropriate sentence for this defendant, taking into
consideration all the facts and circumstances, would be 85 months.
Id. at 18.
On appeal, Martin argued, inter alia, that the district court erred by
increasing his offense level four points under U.S.S.G. § 2k2.1(b)(5) because he
was only actually charged with a misdemeanor for marijuana possession, and there
was insufficient evidence he possessed the firearm “in connection with”
marijuana. This court, affirming the sentence, held that Martin possessed the
firearm “in connection with” marijuana possession, and Martin’s possession of
marijuana was a felony for sentencing purposes.
Martin petitioned for a rehearing on whether the panel’s affirmation of the
enhancement under U.S.S.G. § 2K2.1(b)(5) was inconsistent with the requirement
that the firearm be possessed “in connection with” another felony offense. The
2
The exact midpoint of the recommended sentencing range is 86.5 months.
5
petition having been denied, Martin then petitioned the Supreme Court of the
United States for a writ of certiorari. Martin again raised his claim regarding the
application of U.S.S.G. § 2K2.1(b)(5), but also argued for the first time that his
sentence violated Blakely v. Washington, 542 U.S. 296 (2004) (other than the fact
of a prior conviction, any fact increasing the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury and proved beyond a
reasonable doubt). The Court granted Martin’s writ of certiorari, vacated the
judgment, and remanded to this court for further consideration in light of Booker.
See Martin v. U.S., 125 S.Ct. 1040 (2005).
We directed the parties to file supplemental briefs on when Martin first
raised the Booker issue, whether it was timely raised, and how it applies to his
case.
II. DISCUSSION
In United States v. Pipkins, ___ F.3d ___, 2005 WL 1421449, *2 (11th Cir.
June 20, 2005) this court held that failure to raise a claim under Booker in the
initial brief on direct appeal precludes its consideration. In Pipkins, the defendants
first challenged the constitutionality of their sentences in petitions for rehearing en
banc. Id. at *1. We denied the petitions for rehearing; the defendants petitioned
the Supreme Court; and the Court vacated and remanded for reconsideration in
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light of Booker. Id. at *1. We upheld this court’s long-standing rule not to
consider an issue argued for the first time in a petition for rehearing because
nothing in the Supreme Court’s remand order required treating the Booker issue as
timely raised. Id. at *2. Accordingly, we reinstated the defendants’ sentences. Id.
Martin contends he raised a claim under Blakely at his sentencing hearing
and again on direct appeal. But at his sentencing hearing and on direct appeal,
Martin’s arguments regarding sentencing enhancement were based solely on the
sufficiency of the evidence and proper construction of the “in connection with”
language, not the power of the District Court to decide facts determining the
length of the sentence. Martin did not raise any claim under Booker or Blakely
until his writ of certiorari petition to the Supreme Court.
Because Martin did not raise a claim under Booker or Blakely in his initial
brief on direct appeal to this court, we decline to consider that claim; our opinion
affirming Martin’s conviction and sentence is REINSTATED.
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