FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 22, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-15728

Non-Argument Calendar

________________________

D. C. Docket No. 02-00259-CR-T-26-MSS

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

SYLVESTER EUGENE BENNETT, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(June 22, 2006)

Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:
2

This case is before us for the third time. In United States v. Bennett, No. 02-

16868 (decided July 28, 2003) (unpublished), we affirmed appellant’s prison

sentence of 216 months for committing bank robbery in violation of 18 U.S.C. §§

2113(a) and (d). In our opinion, we noted that “[a]ppellant is a career offender.” 

Appellant thereafter moved the district court pursuant 28 U.S.C. § 2255 to vacate

his sentence on the ground that he should not have been convicted of violating 18

U.S.C. § 2113(d) because, in pleading guilty, he did not admit the elements of §

2113(d), specifically, that the offense involved “a dangerous weapon or device.” 

The Government confessed error, stating that appellant’s conviction should have

been under 18 U.S.C. § 2113(a) only, so the court vacated appellant’s sentence. At

the subsequent resentencing hearing, the court, adhered to its previous

determination that appellant was a career offender and this time sentenced him to

prison for a term of 169 months. 

Appellant appealed this sentence, contending that the court imposed it in

violation of United States v. Booker, 543 U.S. ____, 125 S.Ct. 738, 160 L.Ed.2d

621 (2005). After concluding that the district court had properly determined

appellant’s sentence range under the Guidelines – in particular, by classifying

appellant as a career offender – we found Booker statutory error because the court

had treated the Guidelines as mandatory, rather than advisory. Since the
 Appellant admitted at sentencing that the challenged prior convictions were valid. His 1

objection was, by his own admission, an attempt collaterally to attack the convictions. 

3

Government was unable to demonstrate that the error was harmless, we vacated

appellant’s sentence and remanded the case for resentencing. United States v.

Hightower, No. 04-16358 (decided July 28, 2005) (unpublished).

On resentencing, appellant objected to his career offender classification on

the ground that the indictment failed to allege that he was a career offender as, he

contended, Booker requires. The court overruled his objection, and at the

conclusion of the hearing, sentenced him to prison for a term of 151 months, at the

low end of the Guidelines sentence range. He now appeals that sentence,

reiterating the objection he presented to the district court – that, under Booker, his

prior convictions should have been alleged in the indictment.1

The law-of-the-case doctrine forecloses appellant’s Booker objection. In his

prior appeal, No. 04-16358, appellant argued that the district court erred in

classifying him as a career offender. We rejected his argument, and the district

court, obeying our mandate, properly resentenced him as such. 

AFFIRMED.