[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 25, 2005
No. 03-14358 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00313-CR-T-23-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SIEGFRIED DOUGLAS MCGHEE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 25, 2005)
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before BARKETT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Siegfried Douglas McGhee’s appeal is before us on remand from the
Supreme Court of the United States for further consideration in light of United
States v. Booker, 125 S. Ct. 783 (2005). See McGhee v. United States, 125 S. Ct.
2287 (2005). We previously affirmed McGhee’s conviction and 87-month
sentence for possession of five or more grams of cocaine base with intent to
distribute, in violation of 21 U.S.C. § 841(b)(1)(B)(iii), and possession of cocaine
with intent to distribute, in violation of 21 U.S.C. 841(b)(1)(C). United States v.
McGhee, 125 Fed. Appx. 975 (11th Cir. 2004). After review, we conclude that
McGhee’s failure to timely raise a constitutional challenge to his sentence
precludes him from doing so on remand. Accordingly, we reinstate our prior
opinion and again affirm McGhee’s conviction and sentence.
BACKGROUND
A four-count indictment charged McGhee with: (i) possession of a firearm
as a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (“Count One”); (ii)
possession of five or more grams of cocaine base with intent to distribute, in
violation of 21 U.S.C. § 841(b)(1)(B)(iii) (“Count Two”); (iii) possession of
cocaine with intent to distribute, in violation of 21 U.S.C. § 841(b)(1)(C) (“Count
Three”); and (iv) possession of a firearm in furtherance of a federal drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (“Count Four”).
The case proceeded to trial, where McGhee voluntarily testified, denying
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knowledge of or involvement with the charged drug sales. Following the close of
evidence, the district court granted McGhee’s motion for a judgment of acquittal of
Count Four. The jury then found McGhee not guilty of Count One, but returned
guilty verdicts on Counts Two and Three.
The Pre-Sentence Investigation Report (“PSI”) calculated a base level of 26,
pursuant to § 2D1.1, then added: (i) a two level firearm possession enhancement
under U.S.S.G. § 2D1.1(b)(1); and (ii) an additional two-level enhancement under
§ 3C1.1 for obstruction of justice, based on McGhee’s denial of the charged drug
sales at trial. With a total resulting offense level of 30 and a Criminal History
Category I, the PSI’s guideline imprisonment range was 97 to 121 months.
McGhee filed several objections to the PSI, including objections to the
firearm enhancement and the obstruction of justice enhancement. However, none
of McGhee’s objections raised constitutional errors in sentencing, nor so much as
mentioned McGhee’s Sixth Amendment rights under Apprendi v. New Jersey, 530
U.S. 466 (2000), or any case extending Apprendi. The district court sustained
McGhee’s firearm objection and overruled his objection to the obstruction of
justice enhancement, for a resulting offense level of 28 and a sentencing range of
78 to 97 months’ imprisonment. The district court imposed an 87-month sentence.
Though McGhee’s initial brief on direct appeal raised several points of error
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concerning his conviction, his only contention regarding his sentence focused on
the obstruction of justice enhancement, which McGhee argued was inappropriate
given the district court’s failure to make sufficiently specific factual findings. As
such, McGhee’s initial brief made no argument that it was inappropriate for the
judge to make such factual findings, nor did his brief raise his constitutional jury
trial rights, the Apprendi decision, or any other argument implicating what became
Booker. While McGhee later moved for permission to file a supplemental brief
addressing Sixth Amendment issues, that motion was denied.
We affirmed McGhee’s conviction and sentence. McGhee, 125 Fed. Appx.
975. McGhee then filed a petition for a writ of certiorari with the Supreme Court.
On May 16, 2005, the Supreme Court granted that petition, vacating our opinion
and remanding the case for further consideration in light of Booker.
DISCUSSION
McGhee contends that his objection to the district court’s enhancement for
obstruction of justice, along with his contentions on direct appeal concerning that
enhancement, have preserved the Booker issue for our review. The record does not
support this argument. As discussed above, McGhee’s PSI objection argued that
the enhancement for obstructing justice was improper because as an issue of fact
McGhee did not falsely testify at trial. Likewise, McGhee’s obstruction-of-justice
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arguments on appeal focused on the specificity of the district court’s factual
findings, not on the constitutionality of those factual findings. Because McGhee
made no constitutional Booker-type arguments concerning the obstruction of
justice enhancement before the district court or in his initial brief on appeal, we
reject his contention that he has preserved the Booker issue for review. See United
States v. Dowling, 403 F.3d 1242, 1246 (11th Cir. 2005) (holding that appellant’s
non-constitutional sentencing objection failed to preserve Booker error, where that
objection made no reference to the Sixth Amendment, the role of judge as fact-
finder, the right to jury determination of disputed facts, or the Apprendi line of
cases).
To the contrary, McGhee’s failure to timely raise any Booker-type
constitutional challenge to his sentence in the district court or in his initial brief on
appeal precludes us from now considering the issue. Our precedent dictates that
issues not timely raised in an appellant’s initial brief are deemed abandoned.
United States v. Levy, 379 F.3d 1241, 1244-45 (11th Cir. 2004), vacated by 125
S.Ct. 2542 (2005), judgment reinstated by United States v. Levy, – F.3d –, 2005
WL 1620719, at *2 (11th Cir. July 12, 2005). Prior precedent similarly holds that
neither the procedural posture of this case, nor the Supreme Court’s instructions on
remand, permit any variance from the prudential Levy rule. United States v.
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Ardley, 242 F.3d 989, 990 (11th Cir. 2001) (stating after a remand from the
Supreme Court that “we apply our well-established rule that issues and contentions
not timely raised in the briefs [prior to Supreme Court remand] are deemed
abandoned”); United States v. Dockery, 401 F.3d 1261, 1262 (11th Cir. 2005)
(declining to consider Booker where it was not raised in appellant’s initial brief,
notwithstanding Supreme Court remand for consideration in light of Booker).
Our opinion affirming McGhee’s conviction and sentence is accordingly
REINSTATED.
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