FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 23, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 01-14516

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D.C. Docket No. 00-00048-CR-LAC-3-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

versus

WILLIAM HARRY WEST, et al., 

Defendants-Appellants. 

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

(November 23, 2005)

ON REMAND FROM THE 

SUPREME COURT OF THE UNITED STATES

Before ANDERSON, BARKETT and RONEY, Circuit Judges.

PER CURIAM:

On January 24, 2005, the Supreme Court granted William Harry West’s

petition for writ of certiorari and vacated our decision affirming his jury
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conviction and 136-month sentence for conspiracy to commit wire fraud and

securities fraud, 18 U.S.C. § 371, conspiring to commit money laundering

offenses, 18 U.S.C. § 1956(h), and money laundering, 18 U.S.C. § 1957. The

Court remanded the case to us for further consideration in light of Booker v.

United States, 543 U.S. ___, 125 S. Ct. 738 (2005). Both parties have filed

supplemental letter briefs addressing the implications of Booker to the facts and

circumstances of this case. We reinstate our previous opinion, and affirm West’s

convictions and sentences.

The government argues that West has abandoned any Booker claim by

failing to raise it in his initial brief. West’s court-appointed appellate counsel on

this remand has correctly noted that West’s initial brief adopted the briefs of his

five co-defendants pursuant to 11th Cir. R. 28-1(f). Co-defendant Jeffrey A.

Matz’s initial brief raised an Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.

2348 (2000), argument relating to Matz’s denial of his Sixth Amendment right to a

jury trial in his criminal contempt proceeding. This Court has “liberally construed

what it means to raise a Blakely-type or Booker-type issue” on appeal. United

States v. Levy, 416 F.3d 1273, 1279 (11th Cir. 2005); cf. United States v. Dowling,

403 F.3d 1242, 1246 (11th Cir. 2005) (listing factors to evaluate whether “Bookertype” issue was raised in initial brief). By West adopting Matz’s initial brief and

applying our liberal rules of raising a Booker objection in an opening brief, West
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has timely raised a “Booker-type issue” in his opening brief. Levy, 416 F.3d at

1279; Dowling, 403 F.3d at 1246.

“The first question that an appellate court reviewing a Booker claim must

ask is: did the defendant make a constitutional objection?” Dowling, 403 F.3d at

1245. West has failed to identify, nor have we found, any Booker-type

constitutional objection to sentencing that was made in the district court. This

results in a plain error review, requiring reversal only if there is (1) error, that is

(2) plain, and (3) affects West’s substantial rights. Dowling, 403 F.3d at 1246-47. 

“If all three conditions are met, an appellate court may then exercise its discretion

to notice a forfeited error, but only if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” 403 F.3d at 1247

(quotation omitted).

Although West meets the first two prongs of the plain error analysis because

the district court sentenced him under the then mandatory sentencing guideline

scheme to 136 months imprisonment, which was the middle of the guideline range,

West has failed to demonstrate, however, that 

there is a reasonable probability of a different result if

the guidelines had been applied in an advisory instead of

binding fashion by the sentencing judge in this case

because nothing in the record indicates that the judge

might have imposed a different sentencing scheme. 

403 F.3d at 1247 (quotation omitted).
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A review of West’s sentencing transcripts negates any reasonable

probability that the district court would have sentenced West differently under an

advisory scheme. At sentencing, the district court refused to exercise its

discretion under the then mandatory guidelines by denying West’s request to be

sentenced below the guidelines. The district court ruled as follows:

THE COURT: Excuse me, before we go, I do want to

give you the Court’s decision with regard to the money

laundering and your motion to go below the guidelines. 

The motion will be denied. I do find that money

laundering was an appropriate guideline. Not that I

necessarily always approve of the guidelines, what those

commissioners do, but I think in their decision that it is

appropriate, that this is not out of the heartland of the

money laundering cases, because the money specifically

was laundered to further the criminal activity that was

involved and is the type of conduct that Congress

intended to prescribe.

Accordingly, West has not shown that the mandatory application of the

guidelines affected his substantial rights. See Dowling, 403 F.3d at 1247. We

therefore reinstate our previous opinion in this case and affirm West’s convictions

and sentences.

OPINION REINSTATED; SENTENCE AFFIRMED.