United States v. Craig Cesal

391 F.3d 1172

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 13, 2005
• Docket: 03-15090
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 03-15090 JULY 13, 2005 Non-Argument Calendar THOMAS K. KAHN CLERK ________________________

D. C. Docket No. 02-00030-CR-01-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CRAIG CESAL,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Georgia _________________________ (July 13, 2005)

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM: Last year, we affirmed Cesal’s conviction for being a participant in a

conspiracy to distribute marijuana. United States v. Cesal , 391 F.3d 1172 (11th

Cir. 2004). We dismissed Cesal’s appeal to the extent that it challenged the

sentence imposed for that conviction, on the basis that he had validly waived his

right to appeal his sentence in his plea agreement. Id. at 1182. The case is now

back before us on remand from the Supreme Court for further consideration in

light of Booker v. United States, 543 U.S. __, 125 S. Ct. 738 (2005).

Cesal did not raise any Apprendi/Blakely/Booker issues in his initial brief to

this Court. (He did attempt to raise the issue in his reply brief, but we struck those

portions of his brief.) Cesal’s failure to raise the issue in his initial brief bars him

from doing so now. See United States v. Vanorden, __ F.3d __, No. 03-11083,

2005 WL 1531151 (11th Cir. June 30, 2005); United States v. Dockery, 401 F.3d

1261, 1262–63 (11th Cir. 2005) (per curiam); United States v. Ardley, 242 F.3d

989, 990 (11th Cir. 2001) (per curiam). The instructions in the Supreme Court’s

remand order do not compel a different conclusion. See United 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).

Moreover, we have already concluded that Cesal knowingly and voluntarily

waived his right to challenge his sentence by his plea agreement. Cesal, 391 F.3d

2 at 1182. That waiver included a waiver of the right to challenge his sentence based

on Booker error. See United States v. Rubbo, 396 F.3d 1330, 1335 (11th Cir.

2005) (“[T]he right to appeal a sentence based on Apprendi/Booker grounds can be

waived in a plea agreement. Broad waiver language covers those grounds of

appeal.”).

Accordingly, we reinstate our previous opinion in this case affirming Cesal’s

conviction and dismissing the portions of his appeal relating to his sentence.

OPINION REINSTATED; AFFIRMED.