[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 18, 2005
No. 04-14753
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 04-60122-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELWORTH STONE,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(July 18, 2005)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Elworth Stone appeals his conviction and sentence for conspiracy to possess
with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C.
§ 846. In Stone’s brief, which was filed after the Supreme Court issued United
States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), he argues that the district
court’s sentence based on a drug quantity greater than that charged in the
indictment was clearly erroneous under Blakely v. Washington, 542 U.S. __, 124
S. Ct. 2531 (2004), and violated his Sixth Amendment right to a jury trial because
he did not admit facts establishing the drug quantity and there was no jury verdict
supporting the quantity.
Since Stone preserved his Sixth Amendment claim by raising it in the
district court, we review his sentence de novo, but will reverse only for harmful
error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). A constitutional
error is harmless when it is clear beyond a reasonable doubt that the error did not
contribute to the sentence imposed. Id. “The burden is on the government to
show that the error did not affect the defendant’s substantial rights.” Id.
In Blakely, the Supreme Court held that, under the state of Washington’s
mandatory sentencing guidelines system, the imposition of a sentencing
enhancement based upon facts neither admitted by the defendant nor found by the
jury violated the defendant’s Sixth Amendment right to a jury trial. Blakely, 542
U.S. at __, 124 S. Ct. at 2534-38. In Booker, the Supreme Court extended this
holding to the federal Sentencing Guidelines. Booker, 543 U.S. at __, 125 S. Ct. at
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755. Based on the Supreme Court’s holding, we have stated that there could be
two Booker errors: (1) a Sixth Amendment error – the error of imposing a
sentencing enhancement based on judicial findings that go beyond the facts
admitted by the defendant or found by the jury, and (2) a statutory error – the error
of being sentenced under a mandatory guidelines system. United States v.
Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).
Even though Stone filed his brief after the Supreme Court issued Booker, he
does not raise any challenge based on the mandatory nature of the guidelines.1 In
Shelton, we implicitly held that when a defendant raised a Blakely/Booker
constitutional claim in his initial brief, we should also consider whether there was
statutory error. See Shelton, 400 F.3d at 1330; see also United States v. Camacho-
Ibarquen, __ F.3d __, 2005 WL 1297236, No. 04-11155 (11th Cir. June 2, 2005).
In Shelton and Camacho-Ibarquen, the appellants filed their initial briefs prior to
the Supreme Court’s release of its opinion in Booker. Here, however, Stone filed
his initial brief post-Booker. Accordingly, he had the benefit of the issuance of the
Booker opinion and an opportunity to address Booker’s constitutional and
remedial holdings in his initial brief. Thus, as with any other appellant who fails
1
The Supreme Court issued Booker on January 12, 2005. Counsel for Stone submitted an
electronic version of the initial brief on January 18, 2005, and filed the hard copy on January 26,
2005.
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to raise an issue in his initial brief on appeal, we will not address the statutory
Booker error. See United States v. Duncan, 400 F.3d 1297, 1299 n.1 (11th Cir.
2005) (declining to address the Booker implications of the firearm and role
enhancements because the appellant did not challenge those enhancements in his
initial brief). To do otherwise, would be to depart from our clearly established
circuit precedent that issues not clearly raised in initial briefs are considered
abandoned. Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001).
Thus, Stone has waived any statutory error claims under Booker.
In his brief, Stone argues that the district court’s sentence violates his Sixth
Amendment right to a jury trial. “Any fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted by the defendant
or proved to a jury beyond a reasonable doubt.” Booker, 543 U.S. at __, 125 S. Ct.
at 756 (emphasis added). In the context of the application of Apprendi to
sentencing, “[t]his Court has indicated that when a defendant pleads guilty and
accepts the drug quantity determination contained in the pre-sentence report or
agrees to drug quantity at sentencing or in his plea colloquy, he waives any right
to appeal his sentence on the basis of Apprendi, regardless of what sentence is
ultimately imposed.” United States v. Sanchez, 269 F.3d 1250, 1272 n.40 (11th
4
Cir. 2001) (en banc), abrogated in part on other grounds, United States v.
Duncan, 400 F.3d 1297, 1308 (11th Cir. 2005).
The district court did not err by sentencing Stone based on a drug quantity
not proven to a jury. There was no error under the Sixth Amendment because
Stone (1) admitted to the drug quantity in his plea agreement, and (2) failed to
object to the amount at his plea colloquy. Therefore, the district court did not err,
and we affirm.
AFFIRMED.
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