UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MARK RAYMOND FORD, A.K.A. DRED, A.K.A. BENJAMIN LEE GREEN, A.K.A. DONALD WRAY, DEFENDANT-APPELLANT

11th Cir. | 2001-10-25
No. 99-15208
Before BIRCH, CARNES and FAY, Circuit Judges.
270 F.3d 1346 Court of Appeals for the Eleventh Circuit (2001) Positive Treatment
Cited by 29 cases
Opinion of the Court
PER CURIAM:

PER CURIAM: In this case, appellant was convicted on charges of conspiracy to possess with intent to distribute cocaine base, possession with intent to distribute cocaine base, possession with intent to distribute cocaine and possession of firearms and ammunition by a convicted felon.

Based upon these convictions, multiple prior drug convictions and a long history of pri-or convictions for a variety of crimes, the sentencing judge imposed a life sentence as prescribed by 21 U.S.C. § 841(b).

On his direct appeal, appellant raised five areas of attack: (1) Denial of a motion to suppress; (2) Sufficiency of the evidence; (3) Denial of a requested jury instruction; (4) The calculation of the amount of drugs he was responsible for in the sentencing, and (5) Denial of a motion for new trial.

We affirmed the convictions and sentence.

Subsequent to our affirmance, Ford filed a petition for rehearing in which he attempted to raise an issue under Apprendi v. Neio Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

He requested to file a supplemental brief in this regard.

We denied these requests.

Thereafter, appellant filed a petition for a writ of certiorari in the Supreme Court and that court vacated our opinion and remanded for further consideration in light of Apprendi.

We requested and have received supplemental briefs from the parties.

Having reconsidered our decision pursuant to the instructions from the Supreme Court, we reinstate our opinion and judgment affirming the convictions and sentence.

In the first instance, under our clear precedent, Ford has not properly-raised an Apprendi issue in his direct appeal.

As discussed in United States v. Ardley, 242 F. 3d 989 (11th Cir.2001), our well established rule is that issues and contentions not timely raised in the briefs are deemed abandoned.

Hartsfield v. Lemacks, 50 F. 3d 950, 953 (11th Cir.1995) (“We note that issues that clearly are not designated in the initial brief ordinarily are considered abandoned.”) (quotation marks and citations omitted); Marek v. Singletary, 62 F. 3d 1295, 1298 n. 2 (11th Cir.1995) (“Issues not clearly raised in the briefs are considered abandoned.”); Greenbriar, Ltd. v. City of Alabaster, 881 F. 2d 1570, 1573 n. 6 (11th Cir.1989).

We have recently applied this rule to Apprendi issues.

See 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.”).

Id. at 989-90.

Assuming, for purposes of discussion only, that the Apprendi issues were before us, we find no merit in the contentions being made.

The gravamen of the argument is that the district court lacked jurisdiction to sentence appellant to life imprisonment because the indictment did not set forth the quantity of drugs involved.

This contention has received consideration by our court and been rejected.

See McCoy v. United States, 2001 WL 1131653 (11th Cir.2001).

Apprendi claims are not jurisdictional.

Ford also argues that 21 U.S.C. § 841(b)(1)(A) is facially unconstitutional but acknowledges that we have ruled to the contrary in United States v. Candelario, 240 F. 3d 1300 (11th Cir.2001).

These arguments have been rejected most recently in United States v. Sanchez, 269 F. 3d 1250 (11th Cir.2001)(en banc).

The earlier ruling of this court is reinstated and the convictions and sentence are AFFIRMED.

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Citator

Cited By (15 total)

  • Arthur v. King, 500 F.3d 1335 (11th Cir. 2007)
    …me. Id. at 1335-36, 1337, 1339. . Arthur presents no argument regarding the shell casings, pillowcase, bullet taken from the crime scene or the crime scene photographs on appeal. We, therefore, treat these issues as abandoned. United States v. Ford, 270 F. 3d 1346, 1347 (11th Cir.2001) (per cu-riam). . Each of these claims was also presented in his 2001 habeas petition and his 2002 motion for leave to conduct discovery and considered by the district court. As to Judy Wicker's clothing, the district court conc…
  • United States v. Raphael R. Levy, 379 F.3d 1241 (11th Cir. 2004)
    …ted for decision in this case”); Fed. Sav. and Loan Ins. Corp. v. Haralson, 813 F. 2d 370, 373 n. 3 (11th Cir.1987) (“[I]ssues that clearly are not designated in the appellant’s brief normally are deemed abandoned.”); see also United States v. Ford, 270 F. 3d 1346, 1347 (11th Cir.2001) (“[Ojur well established rule is that issues and contentions not timely raised in the briefs are deemed abandoned.”). For example, in Nealy, this Court noted that “[p]arties must submit all issues on appeal in their initial b…
  • United States v. Duncan, 400 F.3d 1297 (11th Cir. 2005)
    …s issue on appeal by failing to raise it in his initial brief); 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.”); United States v. Ford, 270 F. 3d 1346, 1347 (11th Cir.2001) ("[O]ur well established rule is that issues and contentions not timely raised in the briefs are deemed abandoned.”); United States v. Curtis, 380 F. 3d 1308 (11th Cir.2004) (declining to permit a supplemental brief raising a B…

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