United States v. Richard O. Singer

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 14, 2005
• Docket: 03-15801
• Status: Unpublished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[DO NOT PUBLISH]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. 03-15801 March 28, 2006 Non-Argument Calendar THOMAS K. KAHN ________________________ CLERK

D.C. Docket No. 03-00005-CR-FTM-2DNF

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD O. SINGER,

Defendant-Appellant. __________________________

Appeal from the United States District Court for the Middle District of Florida _________________________

(March 28, 2006)

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM: The Supreme Court vacated our prior decision and remanded the case to us for

further consideration in light of United States v. Booker, 543 U.S. 220, 125 S. Ct.

738, 160 L. Ed. 2d 621 (2005). We previously affirmed Appellant’s 60-month

sentence for conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 371 and

1344. See United States v. Singer, Case No. 03-15801, 152 Fed. Appx. 869 (Oct. 14,

2005) (Table) (unpublished). We asked for, and have received, supplemental briefs

from the parties on the effect of Booker on this case.

In his initial brief, Singer argued the district court erred by (1) denying his

motion for judgment of acquittal because the government presented insufficient

evidence to show that federally-insured banks, as opposed to non-bank entities, were

the actual or intended victims of the criminal scheme; (2) miscalculating the fraud-

loss amount under U.S.S.G. § 2F1.1(b)(1); (3) assessing a four-level leadership-role

enhancement under U.S.S.G. § 3B1.1(a); (4) applying a two-level enhancement under

U.S.S.G. § 2F1.1(b)(5)(C) for the use of a means of identification to unlawfully

produce other means of identification; and (5) ordering that restitution be paid to the

defrauded merchants. Notably, Singer raised no 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.

In United States v. Ardley, 242 F.3d 989 (11th Cir.), cert. denied, 121 S. Ct.

2621 (2001), after the Supreme Court’s remand with instructions to reconsider our

2 opinion in light of Apprendi, we observed the following:

Nothing in the Apprendi opinion requires or suggests that we are obligated to consider an issue not raised in any of the briefs that appellant has filed with us. Nor is there anything in the Supreme Court’s remand order, which is cast in the usual language, requiring that we treat the case as though the Apprendi issue had been timely raised in this Court. In the absence of any requirement to the contrary in either Apprendi or in the order remanding this case to us, we apply our well-established rule that issues and contentions not timely raised in the briefs are deemed abandoned.

Id. at 990 (citations omitted); see also 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.”). We have extended the foregoing rule to

preclude untimely challenges based on Booker. See United States v. Dockery, 401

F.3d 1261, 1263 (11th Cir. 2005).

In his initial brief in this case, Singer asserted no such Apprendi (or its

progeny) challenge to his sentence. Moreover, he points to no authority, and we have

found none, that would allow us not to follow our “well-established rule that issues

and contentions not timely raised in the briefs are deemed abandoned” in the instant

case. See Ardley, 242 F.3d at 990. Accordingly, we reinstate our October 14, 2005

opinion in this case and affirm, once again, Singer’s conviction and sentence after our

reconsideration in light of Booker, pursuant to the Supreme Court’s mandate.

OPINION REINSTATED; SENTENCE AFFIRMED.