[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
August 15, 2005
No. 03-15549 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 99-06195-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS BERGER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 15, 2005)
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before BLACK, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Thomas Berger was convicted by a jury of conspiracy to commit wire and
mail fraud, in violation of 18 U.S.C. § 371. The district court sentenced Berger to
76 months’ imprisonment.1 We affirmed. United States v. Berger, No. 03-15549
(Dec. 6, 2004). The Supreme Court vacated the opinion and remanded the case to
us for consideration in light of United States v. Booker, 543 U.S. ___, 125 S.Ct.
738, 755 (2005). See Berger v. United States, 125 S.Ct. 2541 (2005).
The relevant facts are straightforward. On May 9, 2000, Berger was indicted
for conspiracy to commit wire and mail fraud. The indictment alleged that from
February 1993 through December 1995, Berger and nine other co-conspirators
participated in a fraudulent scheme to offer and sell single channel 800 MHz
specialized mobile radio (“SMR”) licenses and 929 MHz shared frequency private
carrier paging (“PCP”) licenses to individuals throughout the United States.2
According to the indictment, the co-conspirators carried out the fraudulent scheme
1
The 76 months represents consecutive sentences for the conspiracy conviction and a
subsequent failure to appear conviction. The jury trial for the conspiracy case commenced in
2001, and Berger fled the jurisdiction after his conviction. The government then indicted him on
bond-jumping charges. Berger was apprehended in 2003, pleaded guilty to the bond-jumping
charge, and proceeded to sentencing for both cases. Berger received 60 months for conspiracy
and 16 months for his failure to appear.
2
An SMR license is required by the Federal Communications Commission (“FCC”) for
the operation of land mobile communication services in the 800 and 900 MHz range. The FCC
requires a PCP license for the operation of paging or beeper services within the 929-931 MHz
radio frequency.
2
through three corporations. As to Berger’s personal involvement, the indictment
charged that he had (1) incorporated and acted as president of one of the
corporations (“Comcoa”); (2) directed the production of commercials to attract
victims; (3) recruited and trained employees; and (4) wired money from Comcoa
to various bank accounts from February through March 1994.
The jury found Berger guilty of the charged conspiracy. On the verdict
form, the jury indicated that (1) a single conspiracy existed, as charged in the
indictment; (2) Berger was a member of that conspiracy; (3) Berger had not
withdrawn from the conspiracy prior to May 9, 1995; and (4) a member of the
conspiracy had committed an overt act after May 9, 1995.
In preparing the presentence investigation report (“PSI”), the probation
officer recommended a base offense level of six, pursuant to U.S.S.G. § 2F1.1(a).
As a category III offender, a level six would have subjected Berger to a guidelines
range of 2 to 8 months. Beyond the base offense, the PSI also recommended: (1) a
15-level enhancement under § 2F1.1(b)(1)(P) for the amount of loss; (2) a 2-level
enhancement under § 2F1.1(b)(2) for more than minimal planning; (3) a 2-level
enhancement under § 2F1.1(b)(3) for mass-marketing; (4) a 4-level enhancement
under § 3B1.1(a) for Berger’s aggravating role in the offense; and (5) a 2-level
enhancement under § 3C1.1 for obstruction of justice. These enhancements
3
resulted in a sentencing guideline range of at least 60 months. The district court
also sentenced Berger to an additional 16 months for bond-jumping, resulting in a
76-month sentence.
Berger objected to the total amount of loss for which he was held
accountable, his aggravating role, and the obstruction of justice enhancement, but
later withdrew those objections pursuant to an agreement with the government.
Berger then directly appealed to this Court. Based upon the mandatory nature of
the guidelines at the time of the appeal, we previously affirmed Berger’s
conviction and sentence. See United States v. Berger, No. 03-15549 (Dec. 6,
2004). The Supreme Court vacated the opinion and remanded the case to us for
consideration in light of Booker. See Berger v. United States, 125 S.Ct. 2541
(2005).
On appeal, Berger argued that the district court erred by imposing an
enhanced sentence based upon the inclusion of certain sentence-enhancing acts
that were neither submitted to the jury nor proven beyond a reasonable doubt.
Berger did not, however, preserve his objections to the sentence. Although Berger
initially objected to the enhancements, he later withdrew his objections at
sentencing pursuant to an agreement that he previously had reached with the
4
government.3 In fact, a careful review of the transcript demonstrates not only that
Berger received a lighter sentence because the judge did not group the bond-
jumping charge with the conspiracy charge, but also that Berger and the
Government agreed to the ultimate sentence.
On January 12, 2005, the Supreme Court concluded that Blakely applies to
the United States Sentencing Guidelines. United States v. Booker, 543 U.S. __,
125 S.Ct. 738, 755 (2005). Specifically, the Supreme Court determined that the
Sixth Amendment is violated when a district court, acting pursuant to the
Sentencing Reform Act and the mandatory Sentencing Guidelines, imposes a
sentence greater than the maximum authorized by the facts established by the jury
or admitted by the defendant. Id. at 749-50, 755-56. The law of our circuit,
however, is well established that if a defendant waives all objections to
sentencing, that includes issues such as those covered by Apprendi and its
progeny.
The situation here is analogous to one in which a defendant waives his right
to appeal. United States v. Rubbo, 396 F.3d 1330 (11th Cir. 2005), which is
binding precedent, holds that “the right to appeal a sentence based on Apprendi [v.
3
We asked the parties to submit supplemental letter briefs to clarify whether Berger
specifically waived his objections. We thank the parties for their candor, as it revealed that
Berger indeed waived his objections to the enhancements at the sentencing hearing.
5
New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000)] and Booker
grounds can be waived in a plea agreement. Broad waiver language covers those
grounds of appeal.” 398 F.3d at 1335.4 The same is true in Berger’s case. A waiver
of sentencing objections “certainly is broad enough to cover any issues arising
from Apprendi...and its progeny, up to and including Booker.” 396 F.3d at 1333.
Because Berger ultimately waived all relevant objections at the sentencing
hearing, Berger abandoned those issues on appeal. Thus, despite raising
Blakely/Apprendi issues in his amended initial brief, Berger cannot overcome his
initial waiver.5 The record indeed reveals the affirmative act of withdrawing all
4
We found that the record in this matter reflected that the Appellant had a full
understanding of the federal sentencing process and of the fact that he was waiving his appellate
rights.
5
Even if we did not consider Berger’s waiver as preventing him from raising Booker,
Berger’s case would not survive a plain error analysis because he waived all objections at
sentencing. Under these circumstances, we would have to review Berger’s claim in the context of
the plain error standard. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.) cert.
denied ___ S.Ct. ___, ___ U.S. ___ (Jun. 20, 2005) (applying plain error review to a Blakely
claim that the appellant failed to raise in the district court).
This Court may not correct an error that the defendant failed to raise in the district court
unless there is "(1) error, (2) that is plain, and (3) that affects substantial rights." Id. (internal
quotation and citation omitted). "If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings." Id. (internal quotation and
citation omitted).
The third prong of this test would require Berger to prove that the plain error "affects
[his] substantial rights," and that the error "actually did make a difference." Rodriguez, 398 F.3d
at 1298. Berger’s argument simply does not meet the test of showing that he would have received
a lesser sentence had the guidelines not been mandatory. “If we have to speculate concerning the
result in the district court without the error, ‘then the appellant has not met his burden of showing
a reasonable probability that the result would have been different but for the error; he has not met
6
objections and the acceptance of a sentence agreed to by Berger, the Government,
and the sentencing judge. Accordingly, we reinstate our previous opinion in this
case and affirm the Defendant’s conviction and sentence after our reconsideration
in light of Booker, pursuant to the Supreme Court’s mandate.
OPINION REINSTATED. CONVICTION AND SENTENCE AFFIRMED.
his burden of showing prejudice; he has not met his burden of showing that his substantial rights
have been affected.’” United States v. Cartwright, ___ F.3d ___ (11th Cir. Jun. 24,
2005)(quoting Rodriguez, 398 F.3d at 1301).
7