United States v. Gustavo Gomes Rivas , 132 F. App'x 818 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-15919 JUNE 1, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 01-00212-CR-T-17
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUSTAVO GOMES RIVAS,
a.k.a. Gustavo Gomes,
CRISTINO MENDOZA GOMES,
a.k.a. Cristino Mendoza,
PEDRO AGUIRRE ZATISAVAL,
a.k.a. Pedro Aguirrez,
JESUS PORTOCARRERO CANA,
a.k.a. Jesus Portokaero,
JOSE MURILLO KACHIMBO,
a.k.a. Jose Akhin Murillo
Defendants-Appellants.
__________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(June 1, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before WILSON and KRAVITCH, Circuit Judges, and GOLDBERG*, Judge.
PER CURIAM:
Gustavo Gomes Rivas, Cristino Mendoza Gomes, Pedro Aguirre Zatisaval,
Jesus Portocarrero, and Jose Murillo Kachimbo were convicted of conspiring to
possess and possessing with intent to distribute five kilograms or more of cocaine
while aboard a vessel subject to United States jurisdiction, in violation of 46
U.S.C. § 1903 and 21 U.S.C. § 960. Each was sentenced to 235 months
imprisonment. On January 20, 2004, we affirmed the convictions and sentences.
Notably, none of the defendants-appellants challenged the constitutionality of their
sentences before the district court or this court.1 The Supreme Court granted
certiorari, vacated our opinion and remanded the case to us for reconsideration in
*
Honorable Richard w. Goldberg, United States Court of International Trade, sitting by
designation.
1
We issued our opinion affirming the convictions and sentences before the U.S. Supreme
Court decided Booker and Blakely v. Washington, 542 U.S. –, 124 S.Ct. 2531, 159 L.Ed.2d 403(2004). Nevertheless, the defendants-appellants could have challenged the constitutionality of their
sentences by arguing that any facts that increased their sentences be proven to a jury beyond a
reasonable doubt. See United States v. Dowling, No. 04-10464, manuscript op. at 6-10 (11th Cir.
Mar. 23, 2005) (explaining the manner in which a defendant may preserve challenges to the
constitutionality of a sentence).
2
light of United States v. Booker, 543 U.S. –, 125 S.Ct. 738, 160 L.Ed.2d 621(2005).
Because the defendants-appellants did not raise constitutional challenges to
the sentences before the district court or this court, any possible claim based on the
Supreme Court=s recent decisions in Booker has been abandoned. See United
States v. Dockery, 401 F.3d 1261, 1262-63 (11th Cir. 2005) (holding that
appellant abandoned his Booker claim on appeal by not raising a timely
constitutional challenge to his sentence in his initial brief).
Accordingly, we AFFIRM.
3