FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 30, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 02-11451

Non-Argument Calendar

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D.C. Docket No. 01-00086-CR-FTM-29

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WARRICK LASHAWN LEVY,

a.k.a. Walsy,

Defendant-Appellant.

__________________________

Appeal from the United States District Court for the

Middle District of Florida

_________________________

(September 30, 2005)

ON REMAND FROM THE SUPREME COURT

OF THE UNITED STATES

Before DUBINA, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
We note that Appellant did argue in his initial brief that 21 U.S.C. § 841 was 1

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). 

2

The Supreme Court vacated our prior opinion in this case and remanded it

for consideration in light of United States v. Booker, 543 U.S. __, 125 S. Ct. 738,

160 L. Ed. 2d 621 (2005).

We directed the parties to file supplemental briefs to explain when the

Appellant first raised the Booker issue and how the Booker decision applies. In

his supplemental brief, the Appellant, Warrick Lashawn Levy, a federal prisoner

serving a 262-month sentence for drug trafficking, argues that we should vacate

his sentence and remand the case to the district court for re-sentencing in light of

Booker. However, the Appellant concedes that he “did not raise[] a Blakley or

Booker issue in his initial brief” (Appellant’s Supplemental Letter Brief at 7) and

that his first attempt to challenge the constitutionality of his sentence was in his

petition for supplemental briefing, which this court denied. The Government

1

responds that the Appellant’s challenge to his sentence was not timely raised

before this court because the argument was not included in his initial brief. 

Because we conclude that even if Appellant preserved his Booker arguments he

has failed to establish plain error, we affirm the Appellant’s sentence.
3

Our precedents are clear that failure to raise a sentencing challenge under

Apprendi/Blakley/Booker in the initial brief on appeal bars a defendant from later

seeking to challenge his sentence. See, e.g. United States v. Sears, 411 F.3d 1240,

1241 (11th Cir. 2005) (“The Appellant’s failure to raise the issue in his initial brief

bars him from doing so now.”); United States v. Dockery, 401 F.3d 1261, 1262-63

(11th Cir. 2005) (following the “well-established rule that issues and contentions

not timely raised in the briefs are deemed abandoned.”); United States v. Levy, No.

01-17133, 2005 WL 1620719, at *4-5 (11th Cir. July 12, 2005) (explaining this

court’s prudential rule that parties raise issues in their initial briefs and noting that

such rule is not unduly harsh). Appellant’s denied attempt to file a supplemental

brief raising the issue does not save him from this bar. See Sears, 411 F.3d at

1241 (“[Appellant] did attempt to file a supplemental brief raising such an issue,

but we denied him permission to do so. The Appellant’s failure to raise the issue

in his initial brief bars him from doing so now.”). Moreover, the remand

instructions from the Supreme Court do not demand a different result. 

However, “we have liberally construed what it means to raise a Blakely-type

or Booker-type issue.” Levy, 2005 WL 1620719, at *4-5. Because the record

reveals that Appellant may have preserved the issue by raising a challenge under

Apprendi in his initial brief, we will briefly address the challenge to his sentence. 
4

Appellant contends that the district court erred when it enhanced his sentence

based upon the court’s determinations that he assaulted a law enforcement officer

and recklessly created a substantial risk of death or serious bodily injury during

flight from law enforcement. Although Appellant initially objected to the

enhancements, he subsequently withdrew his objections–objections that

challenged the facts underlying the enhancements. During the plea colloquy

Appellant admitted that he repeatedly rammed his vehicle as law enforcement

agents attempted to block his vehicle and arrest him; that he drove through a yard,

over a sidewalk, and hit two law enforcement vehicles; and that he led a high

speed chase. Thus, Appellant admitted the facts underlying his enhancements.

This court reviews for plain error challenges under

Apprendi/Blakley/Booker raised for the first time in the initial brief on appeal. 

Examining first the issue of Booker constitutional error, we conclude that because

Appellant admitted the facts that enhanced his sentence, there is no Sixth

Amendment violation. See United States v. Shelton, 400 F.3d 1325, 1330 (11th

Cir. 2005) (holding there was no Sixth Amendment violation where defendant

admitted to the facts that enhanced his sentence). Turning to the issue of nonconstitutional or statutory Booker error, and applying plain error, we must

determine whether there was “(1) error, (2) that is plain, and (3) that affects
5

substantial rights.” United States v. Fields, 408 F.3d 1356, 1360 (11th Cir. 2005)

(quotation omitted). The first and second prongs of the plain error test are easily

satisfied. See id. Moving to the third prong, we must determine “whether 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.” Id.

(quotation omitted). 

[I]f it is equally plausible that the error worked in favor of the

defense, the defendant loses; if the effect of the error is uncertain so

that we do not know which, if either, side it helped the defendant

loses. Where errors could have cut either way and uncertainty exists,

the burden is the decisive factor in the third prong of the plain error

test, and the burden is on the defendant. Where [w]e just don’t know

whether the defendant would have received a lesser sentence if the

guidelines had been advisory, the defendant has not met his burden of

showing prejudice.

Id. (quotation omitted). 

While the district court sentenced Appellant at the bottom end of the

Guidelines range, this fact alone does not carry the defendant’s burden to show

that the error affected his substantial rights. See Fields, 408 F.3d at 1360-61

(holding that Appellant’s sentence at the bottom of the Guideline range alone was

not enough to satisfy third prong of the plain error test). Instead, “the fact that the

district court sentenced the defendant to the bottom of the applicable guidelines

range establishes only that the court felt that the sentence was appropriate under
6

the mandatory guidelines system[;] [i]t does not establish a reasonable probability

that the court would have imposed a lesser sentence under an advisory regime.” 

Id. In fact, here the district court indicated its hesitation in imposing a sentence at

the low end of the Guidelines:

I [agree to sentence you at the bottom end of the Guidelines]

after some serious consideration in light of your criminal history and

the events surrounding your arrest or immediately proceeding the

arrest. . . . Offset against that is the fact that you have pled guilty

[and] admitted your responsibility for this particular event. And have,

I suspect, wisely withdrawn your objections [to the sentencing

enhancements] in light of the testimony that I was hearing.

Doc. 27 at 18-19. Based upon the foregoing, Appellant has failed to demonstrate a

reasonable probability that the district court would have imposed a lesser sentence

under an advisory guideline system.

Accordingly, we affirm Appellant’s sentence.

AFFIRMED.