[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 8, 2005
No. 03-16550
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket Nos. 03-60170-CR-WPD & 03-60194 CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMETRIUS SEARS,
a.k.a. Marcus A. Jackson,
etc.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 8, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before ANDERSON, CARNES and WILSON, Circuit Judges.
PER CURIAM:
On September 23, 2004, we issued an unpublished opinion, United States
v. Sears, No. 03-16550 (11th Cir. Sept. 23, 2004), vacating the Appellant’s
sentence and remanding for resentencing because of errors that had to do with the
length of the supervisory release terms he was to serve and were unrelated to the
later decision in Booker v. United States, 543 U.S. ___, 125 S. Ct. 738 (2005).
The Supreme Court has now vacated our judgment and remanded the case to us for
further consideration in light of its Booker decision. In the meantime, the district
court resentenced Appellant, in accordance with our September 23rd decision.
For two reasons we do not believe that Booker requires us to alter our prior
decision in this case. First, the Appellant did not raise any Apprendi/Blakely/
Booker issue in his initial brief to this Court. He did attempt to file a supplemental
brief raising such an issue, but we denied him permission to do so. The
Appellant’s failure to raise the issue in his initial brief bars him from doing so
now. See United States v. Dockery, 401 F.3d 1261 (11th Cir. 2005) (per curiam);
United States v. Levy, 379 F.3d 1241 (11th Cir. 2004) (per curiam); United States
v. Ardley, 242 F.3d 989 (11th Cir. 2001) (per curiam). The instructions in the
Supreme Court’s remand order do not compel a different conclusion. See United
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States v. Ardley, 273 F.3d 991, 994–96 (11th Cir. 2001) (Carnes, J., joined by
Black, Hull, and Marcus, JJ., concurring in the denial of rehearing en banc).
Second, the Appellant has been given an opportunity to be sentenced in
accord with Booker, and he voluntarily elected not to be. After our mandate
issued remanding the case for resentencing, the district court began proceedings to
correct his sentence, as our decision required. The district court was apparently
unaware that the Appellant was simultaneously seeking certiorari. Before the
district court corrected the sentence, the Supreme Court issued its Booker decision
on January 12, 2005. The actual resentencing in the district court took place on
February 3, 2005. The district court advised the Appellant that it would sentence
him in accordance with the Booker decision, as he had previously requested, if he
wished the court to do so. The court pointed out that the first time around it had
sentenced the Appellant to the highest sentence it could while treating the
guidelines as binding. It explained that treating the guidelines as advisory, rather
than mandatory, could result in a higher sentence. The Appellant, after consulting
with his attorney during a recess, elected not to be sentenced de novo in accord
with the Booker decision but instead to have the district court simply correct the
supervisory release terms as the court of appeals’ mandate required. That is what
the district court did.
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This is not a case in which the Appellant merely forfeited the Booker issue
by not timely raising it, although he did that. It is a case in which the Appellant
actually waived the right to be sentenced in accord with Booker after that decision
came out. The Appellant could have had the relief he seeks now, but he
knowingly elected to forgo it. In these circumstances, we will not give the
Appellant yet another bite at the Booker apple.
Next, the Appellant argues that the district court’s action in resentencing
him is “void ab initio” on the theory that the Supreme Court’s order vacating our
judgment also had the effect of vitiating the district court’s resentencing order
entered pursuant to our judgment. We disagree. The Appellant did not ask us to
stay the mandate of our September 23, 2004, decision requiring that his sentence
be corrected for reasons that were not Booker-based. Our mandate issued in the
normal course on October 22, 2004. Issuance of the mandate gave the district
court jurisdiction over the case again, and that court exercised it when it
resentenced Appellant. Six weeks after our mandate issued, on December 22,
2004, the Appellant filed a petition for writ of certiorari raising the Booker issue.
The petition for certiorari to the Supreme Court did not divest the court of appeals
or district court of jurisdiction. Under Fed.R.App.P. 41(d)(2), the certiorari
petitioner can apply for a stay of the mandate; one does not automatically issue
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upon filing with the Supreme Court. Therefore, the mere filing of a petition for
certiorari with the Supreme Court neither stops the mandate from issuing nor stops
the case from proceeding in the district court. A litigant desiring such cessation
must seek and obtain a stay.
In Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 94 S.Ct. 2532
(1974), the mandate of the court of appeals issued before the Circuit Justice signed
a stay. Respondent moved to dismiss the writ of certiorari on that basis. The
Court, noting that the Circuit Justice’s stay was treated in the lower courts as
staying proceedings under the mandate of the court of appeals, denied the
Respondent’s motion to dismiss. Warden thus suggests that the certiorari
proceedings in the Supreme Court did not divest the lower courts of jurisdiction,
and that, absent a stay, the lower court proceedings could go forth. See also Aetna
Cas. & Sur. Co. v. Flowers, 330 U.S. 464, 466-67, 67 S.Ct. 798, 799-800 (1947)
(after noting that the mandate of the court of appeals had issued and pursuant
thereto the case had been remanded to state court, the Supreme Court held: “[n]or
does the fact that the mandate of the Circuit Court of Appeals has issued defeat
this Court’s jurisdiction); United States v. Perez, 110 F.3d 265, 266-67 & n.4 (5th
Cir. 1997) (rejecting appellant’s argument that the failure of the government to file
a stay when it filed for certiorari meant that the Supreme Court did not have
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jurisdiction when the court of appeals issued its mandate pursuant to which the
district court dismissed the indictment).
The instant case is analogous to the foregoing cases. We hold that the fact
that certiorari proceedings were going forth in the Supreme Court does not divest
the district court of jurisdiction upon the issuance of our mandate remanding for
resentencing, and does not vitiate the district court’s resentencing order. In the
absence of a stay, the proceedings in the district court were in no way improper.
The Supreme Court’s remand instructions require only that we reconsider
our prior judgment in light of the Booker decision. Having done that, we will
reinstate our previous judgment. That restores the effect of our prior remand and
any actions the district court took in compliance with our remand instructions.
The situation is now the same as if the Supreme Court had not vacated our
judgment.
We express no opinion on any issues that the Appellant may raise in an
appeal from the district court’s resentence order on remand, except that we do hold
the court had jurisdiction to resentence on remand in accord with the mandate that
issued after our initial decision in this case, and the Appellant waived any right he
had to be resentenced pursuant to the Booker decision.
Our September 23, 2004 opinion is REINSTATED.
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