United States v. Robert O'Neal

362 F.3d 1310, 154 F. App'x 161

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 9, 2005
• Docket: 03-10559
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 03-10559 ELEVENTH CIRCUIT November 9, 2005 ________________________ THOMAS K. KAHN CLERK D. C. Docket No. 01-06244 CR-WDF

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LEONARD SAPP, JEFFREY SAPP,

Defendants-Appellants.

________________________

Appeals from the United States District Court for the Southern District of Florida _________________________

(November 9, 2005)

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before DUBINA, BARKETT and COX, Circuit Judges.

PER CURIAM: This case is before the court for reconsideration in light of United States v.

Booker, 543 U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). A jury found the

defendants Leonard Sapp and Jeffrey Sapp and co-defendant Robert O’Neal guilty

of conspiracy to possess with intent to distribute at lease fifty grams of crack cocaine,

in violation of 21 U.S.C. § 846, and guilty on multiple counts of possession with

intent to distribute at least five grams of crack cocaine, in violation of 21 U.S.C. §

841. Leonard Sapp was sentenced, pursuant to the United States Sentencing

Guidelines (“Guidelines”), to a total of 360 months’ imprisonment. Jeffrey Sapp was

not sentenced under the Guidelines; he was sentenced to 240 months’ imprisonment,

the statutory minimum under 21 U.S.C. § 841(b)(1). We previously affirmed the

convictions and sentences. See United States v. O’Neal, 362 F.3d 1310 (11th Cir.

2004). The Supreme Court vacated our prior decision as to Leonard Sapp and Jeffrey

Sapp and remanded the case to us for reconsideration in light of Booker. Jeffery Sapp

v. United States, 125 S. Ct. 1114 (2005); Leonard Sapp v. United States, 125 S. Ct.

1011 (2005). For the reasons that follow, we reinstate our prior decision affirming

the Defendants’ convictions and sentences.

Our circuit precedent holds that any argument not raised in a party’s initial

brief is considered abandoned. United States v. Dockery, 401 F.3d 1261, 1262-63

(11th Cir. 2005). The Booker decision did nothing to abrogate that well-settled rule.

2 United States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2005). Contrary to assertions in

their supplemental briefs, neither Defendant raised, in his initial appellate brief, any

issue regarding the constitutionality of the Guidelines, either facially or as applied,

or argued that his right to trial by jury was violated as a result of judicial fact-finding

that enhanced his sentence.1 Thus, both of these defendants abandoned any Booker

arguments they might have had.

OPINION REINSTATED; CONVICTIONS AND SENTENCES

AFFIRMED.

1 Leonard Sapp argues in his supplemental briefing on remand that waiver does not attach because an Apprendi argument was made in his initial appellate brief. However, a review of his opening appellate brief reveals that Leonard Sapp incorporated by reference the only Apprendi argument made on appeal (that of co-defendant O’Neal)– that the special verdict form submitted to the jury was insufficient to comply with Apprendi because it inadequately apprised the jury that it had to find drug quantity “beyond a reasonable doubt.” That argument cannot be construed as a challenge to the constitutionality of the Guidelines and thus does not suffice to prevent waiver of the Booker issue.