United States v. Lesly Alexis

146 F. App'x 469

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 13, 2005
• Docket: 03-13921
• Status: Unpublished

Opinions

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM:

This case is before the Court for consideration in light of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We previously affirmed Alexis’ conviction and sentence. See United States v. Alexis, 125 Fed.Appx. 980 (11th Cir.2004) (unpublished). The Supreme Court vacated our prior decision and remanded the case to us for further consideration in light of Booker.

In his initial brief on direct appeal, Alexis did not assert error based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), or any other case extending or applying the Apprendi principle. However, Alexis sought permission to file a supplemental brief to present additional arguments concerning Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We granted Alexis’ motion, but the Government asked for reconsideration. We granted reconsideration on September 8, 2004, and decided to consider the case on the briefs previously filed.

In United States v. Sears, 411 F.3d 1240, 1241 (11th Cir.2005), a case with a procedural history similar to this one, we held that Booker did not require us to alter our prior decision because Sears did not raise a Booker issue in his initial brief, was denied leave to file a supplemental brief raising Booker, and nothing in the Supreme Court’s remand order demanded a different conclusion. The same reasoning holds in this case.

Because Alexis did not assert error based on Apprendi (or its progeny) in his initial brief on appeal, we reinstate our previous opinion in this case and affirm Alexis’ conviction and sentence after our reconsideration in light of Booker, pursuant to the Supreme Court’s mandate.

OPINION REINSTATED IN PART; AFFIRMED IN PART.