[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 25, 2001
No. 99-15208 THOMAS K. KAHN
CLERK
Non-Argument Calendar
_________________________
D. C. Docket No. 97-00314-CR-J-20C
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK RAYMOND FORD,
a.k.a. Dred,
a.k.a. Benjamin Lee Green,
a.k.a. Donald Wray,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 25, 2001)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before BIRCH, CARNES and FAY, Circuit Judges.
PER CURIAM:
In this case, appellant was convicted on charges of conspiracy to possess
with intent to distribute cocaine base, possession with intent to distribute cocaine
base, possession with intent to distribute cocaine and possession of firearms and
ammunition by a convicted felon. Based upon these convictions, multiple prior
drug convictions and a long history of prior convictions for a variety of crimes, the
sentencing judge imposed a life sentence as prescribed by 21 U.S.C. § 841(b).
On his direct appeal, appellant raised five areas of attack: (1) Denial of a
motion to suppress; (2) Sufficiency of the evidence; (3) Denial of a requested jury
instruction; (4) The calculation of the amount of drugs he was responsible for in
the sentencing, and (5) Denial of a motion for new trial. We affirmed the
convictions and sentence.
Subsequent to our affirmance, Ford filed a petition for rehearing in which he
attempted to raise an issue under Apprendi v. New Jersey, 530 U.S. 466 (2000).
He requested to file a supplemental brief in this regard. We denied these requests.
Thereafter, appellant filed a petition for a writ of certiorari in the Supreme
Court and that court vacated our opinion and remanded for further consideration in
light of Apprendi. We requested and have received supplemental briefs from the
parties. Having reconsidered our decision pursuant to the instructions from the
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Supreme Court, we reinstate our opinion and judgment affirming the convictions
and sentence.
In the first instance, under our clear precedent, Ford has not properly raised
an Apprendi issue in his direct appeal. As discussed in United States v. Ardley,
242 F.3d 989 (11th Cir. 2001), our well established rule is that issues and
contentions not timely raised in the briefs are deemed abandoned. Hartsfield v.
Lemacks, 50 F.3d 950, 953 (11th Cir. 1995) (“We note that issues that clearly are
not designated in the initial brief ordinarily are considered abandoned.”) (quotation
marks and citations omitted); Marek v. Singletary, 62 F.3d 1295, 1298 n.2 (11th
Cir. 1995) (“Issues not clearly raised in the briefs are considered abandoned.”);
Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).
We have recently applied this rule to Apprendi issues. See United States v. Nealy,
232 F.3d 825, 830, (11th Cir. 2000) (“Defendant abandoned the [Apprendi]
indictment issue by not raising the issue in his initial brief.”). Id. at 989-90.
Assuming, for purposes of discussion only, that the Apprendi issues were
before us, we find no merit in the contentions being made. The gravamen of the
argument is that the district court lacked jurisdiction to sentence appellant to life
imprisonment because the indictment did not set forth the quantity of drugs
involved. This contention has received consideration by our court and been
rejected. See McCoy v. United States, 2001 WL 1131653 (11th Cir. 2001).
Apprendi claims are not jurisdictional. Ford also argues that 21 U.S.C. §
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841(b)(1)(A) is facially unconstitutional but acknowledges that we have ruled to
the contrary in United States v. Candelario, 240 F.3d 1300 (11th Cir. 2001). These
arguments have been rejected most recently in United States v. Sanchez, 2001WL
1242087 (11th Cir. 2001)(en banc).
The earlier ruling of this court is reinstated and the convictions and sentence
are AFFIRMED.
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