United States v. Elworth Stone

[DO NOT PUBLISH]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

2
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.

3
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.