[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 22, 2006
No. 05-15728 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00259-CR-T-26-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SYLVESTER EUGENE BENNETT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 22, 2006)
Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
This case is before us for the third time. In United States v. Bennett, No. 02-
16868 (decided July 28, 2003) (unpublished), we affirmed appellant’s prison
sentence of 216 months for committing bank robbery in violation of 18 U.S.C. §§
2113(a) and (d). In our opinion, we noted that “[a]ppellant is a career offender.”
Appellant thereafter moved the district court pursuant 28 U.S.C. § 2255 to vacate
his sentence on the ground that he should not have been convicted of violating 18
U.S.C. § 2113(d) because, in pleading guilty, he did not admit the elements of §
2113(d), specifically, that the offense involved “a dangerous weapon or device.”
The Government confessed error, stating that appellant’s conviction should have
been under 18 U.S.C. § 2113(a) only, so the court vacated appellant’s sentence. At
the subsequent resentencing hearing, the court, adhered to its previous
determination that appellant was a career offender and this time sentenced him to
prison for a term of 169 months.
Appellant appealed this sentence, contending that the court imposed it in
violation of United States v. Booker, 543 U.S. ____, 125 S.Ct. 738, 160 L.Ed.2d
621 (2005). After concluding that the district court had properly determined
appellant’s sentence range under the Guidelines – in particular, by classifying
appellant as a career offender – we found Booker statutory error because the court
had treated the Guidelines as mandatory, rather than advisory. Since the
2
Government was unable to demonstrate that the error was harmless, we vacated
appellant’s sentence and remanded the case for resentencing. United States v.
Hightower, No. 04-16358 (decided July 28, 2005) (unpublished).
On resentencing, appellant objected to his career offender classification on
the ground that the indictment failed to allege that he was a career offender as, he
contended, Booker requires. The court overruled his objection, and at the
conclusion of the hearing, sentenced him to prison for a term of 151 months, at the
low end of the Guidelines sentence range. He now appeals that sentence,
reiterating the objection he presented to the district court – that, under Booker, his
prior convictions should have been alleged in the indictment.1
The law-of-the-case doctrine forecloses appellant’s Booker objection. In his
prior appeal, No. 04-16358, appellant argued that the district court erred in
classifying him as a career offender. We rejected his argument, and the district
court, obeying our mandate, properly resentenced him as such.
AFFIRMED.
1
Appellant admitted at sentencing that the challenged prior convictions were valid. His
objection was, by his own admission, an attempt collaterally to attack the convictions.
3