United States v. Kalyn Nagel , 151 F. App'x 843 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_____________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 00-15847 September 27, 2005
_____________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 98-00019 CR-1-MMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KALYN NAGEL,
Defendant-Appellant.
_____________________________
No. 01-16356
_____________________________
D. C. Docket No. 98-00019 CR-1-MMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUDITH GIGLIO,
a.k.a. Judie Giglio,
Defendant-Appellant.
_____________________________
No. 02-16832
_____________________________
D. C. Docket No. 98-00019 CR-1-9-MMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KALYN NAGEL,
JUDITH GIGLIO,
a.k.a. Judie Giglio,
Defendants-Appellants.
_____________________________
Appeals from the United States District Court
for the Northern District of Florida
_____________________________
(September 27, 2005)
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before EDMONDSON, Chief Judge, DUBINA and COX, Circuit Judges.
PER CURIAM:
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A jury found Defendants Giglio and Nagel guilty of conspiracy to launder
money obtained through wire fraud. Nagel and Giglio appealed their convictions;
we affirmed. United States v. Nagel, No. 00-15847, 2004 WL 1578993 (11th Cir.
Jun. 30, 2004) (Table); United States v. Giglio, No. 01-16356, United States v.
Nagel, No. 00-15847, 2004 WL 1578994 (11th Cir. Jun. 30, 2004) (Table).
Defendants appealed our decision to the United States Supreme Court. The Court
vacated the judgments and remanded the cases to us in the light of United States v.
Booker, 125 S. Ct. 738 (2005). Giglio v. United States, 125 S. Ct. 1689 (2005);
Nagel v. United States, 125 S. Ct. 1052 (2005).
Defendant Giglio raised no Booker/Blakely/Apprendi objection at trial or on
appeal. The Supreme Court’s remand does not make the issue -- which was
abandoned -- timely before us. United States v. Dockery, 401 F.3d 1261, 1263
(11th Cir. 2005). See United States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001)
(recognizing that the Supreme Court did not indicate this Court should ignore
“our well-established rule that issues and contentions not timely raised in the
briefs are deemed abandoned”).
Defendant Nagel did raise a sentencing issue to the district court and on her
initial appeal. At the sentencing hearing before the district court, Nagel’s counsel
argued the evidence was insufficient to support a sentence enhancement for
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obstruction of justice. What was said cited no caselaw, nor did it raise a question
about the propriety of judicial fact-finding.1
On appeal, Nagel raised three arguments about the obstruction of justice
enhancement: (1) the statements that the court considered to be perjury were not
material; (2) the district court did not make specific factual findings to support its
determination; and (3) Nagel’s statements were consistent with the evidence at
trial. We previously rejected the contentions, and they do not raise constitutional,
Booker/Blakely/Apprendi kind of objections. United States v. Dowling, 403 F.3d
1242, 1245 (11th Cir. 2005). See generally United States v. Martinez, 96 F.3d
473, 475 (11th Cir. 1996) (deciding that issue framing matters). Accordingly, we
again affirm the sentence and conviction.
Even if we thought the appellate brief framed and raised a
Booker/Blakely/Apprendi issue, we would review it for plain error, because
Nagel’s counsel’s statement in the trial court did not raise the issue. United States
v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005); Dowling, 403 F.3d at 1245.
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Nagel’s counsel said: “The record is going to simply reject very substantially everything that [the
prosecuting attorney] has said regarding my client saying something that somehow should increase
her responsibility by two points for obstruction of justice and not being truthful on the stand. As the
Court knows, in a case that involves the application of deliberate indifference or in a case of an
activity which in and of itself is not illegal, intent can be proven. And in this case apparently it was
accepted by the government that she should have known. Simply because she took the stand and
testifies on her own behalf does not mean that she wasn’t speaking the truth as she understands it to
be. Based on the record, the Court should disallow the two points.”
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Under the plain error review, we decide whether the district court made (1) an
error; (2) that is plain; and (3) that affects substantial rights. Id. Nagel bears the
burden of demonstrating the three elements.
Presuming without deciding the district court erred, we conclude that Nagel
cannot show that such an error affected her substantial rights. Unlike the
defendant in United States v. Shelton, 400 F.3d 1325, 1332-33 (11th Cir. 2005),
Nagel cannot show that a reasonable probability existed that “the district court
would have imposed a lesser sentence . . . if it had not felt bound by the Guidelines
. . . [and that] a reasonable probability that some sentence below the Guidelines
range would be permissible and reasonable in light of Booker and the [18 U.S.C.]
§ 3553(a) factors.” The transcript is void of those kinds of concerns by the district
court.
In all matters, the district court’s order is again affirmed.
AFFIRMED.
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