United States v. Vincent Lee Ferguson

Eleventh Circuit

United States v. Vincent Lee Ferguson

176 F. App'x 46

CourtCourt of Appeals for the Eleventh Circuit

DecidedMarch 17, 2006

Docket03-13803

StatusUnpublished

This text of 176 F. App'x 46 (United States v. Vincent Lee Ferguson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Vincent Lee Ferguson, 176 F. App'x 46 (11th Cir. 2006).

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Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM:

This case is before the Court for consideration in the light of United States v. Booker, 548 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We previously affirmed Appellant’s convictions and sentences for cocaine importation, 21 U.S.C. § 952(a), and possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1). See United States v. Ferguson, 129 Fed.Appx. 597 (11th Cir.2005) (unpublished). The Supreme Court vacated our prior decision and remanded the case to us for further consideration in the light of Booker.

In his initial brief on direct appeal, Appellant challenged his convictions, but not his sentences. And Appellant 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 case extending or applying the Apprendi principle. Appellant first mentioned a Boo/eer-based sentencing claim in his petition for rehearing, which we denied. In United States v. Ardley, 242 F.3d 989 (11th Cir.), cert. denied, 533 U.S. 962, 121 S.Ct. 2621, 150 L.Ed.2d 774 (2001), after the Supreme Court’s remand with instructions to reconsider our opinion in the light of Apprendi, we declined to review the Apprendi issue because it was not presented in the appellant’s initial brief. 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’). Recently, we applied Ardley to a post-Booker remand and determined that the defendant had abandoned his Booker claim because he failed to raise it at the district court or in his initial brief. See United States v. Dockery, 401 F.3d 1261, 1262-63 (11th Cir.), cert. denied, -U.S.-, 126 S.Ct. 442, 163 L.Ed.2d 336 (2005).

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

OPINION REINSTATED; CONVICTIONS AND SENTENCES AFFIRMED.

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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM:

This case is before the Court for consideration in the light of United States v. Booker, 548 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We previously affirmed Appellant’s convictions and sentences for cocaine importation, 21 U.S.C. § 952(a), and possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1). See United States v. Ferguson, 129 Fed.Appx. 597 (11th Cir.2005) (unpublished). The Supreme Court vacated our prior decision and remanded the case to us for further consideration in the light of Booker.

In his initial brief on direct appeal, Appellant challenged his convictions, but not his sentences. And Appellant 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 case extending or applying the Apprendi principle. Appellant first mentioned a Boo/eer-based sentencing claim in his petition for rehearing, which we denied. In United States v. Ardley, 242 F.3d 989 (11th Cir.), cert. denied, 533 U.S. 962, 121 S.Ct. 2621, 150 L.Ed.2d 774 (2001), after the Supreme Court’s remand with instructions to reconsider our opinion in the light of Apprendi, we declined to review the Apprendi issue because it was not presented in the appellant’s initial brief. 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’). Recently, we applied Ardley to a post-Booker remand and determined that the defendant had abandoned his Booker claim because he failed to raise it at the district court or in his initial brief. See United States v. Dockery, 401 F.3d 1261, 1262-63 (11th Cir.), cert. denied, -U.S.-, 126 S.Ct. 442, 163 L.Ed.2d 336 (2005).

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

OPINION REINSTATED; CONVICTIONS AND SENTENCES AFFIRMED.

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