USA v. Anthony Laterza

Filing 920060607

Opinion

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _________________________

FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 03-12499 JUNE 7, 2006 Non-Argument Calendar THOMAS K. KAHN __________________________ CLERK

D.C. Docket No. 02-14072-CR-DMM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANTHONY LATERZA, Defendant-Appellant. __________________________ Appeal from the United States District Court for the Southern District of Florida __________________________ (June 7, 2006) ON REMAND FROM THE UNITED STATES SUPREME COURT Before TJOFLAT, BLACK and BARKETT, Circuit Judges. PER CURIAM: This case is on remand from the Supreme Court for further consideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). Laterza v.

United States, 543 U.S. 1106, 125 S.Ct. 1006 (Mem.) (2005). In our previous decision, United States v. Laterza, No. 03-12499 (11th Cir. March 17, 2004) (unpublished opinion), which the Supreme Court has vacated, we affirmed the 60 months prison sentence appellant received for manufacturing more than 100 marijuana plants, in violation of 21 U.S.C. § 841(a)(1). Appellant now contends that Booker requires that we vacate his sentence and remand the case for resentencing because the district court sentenced him pursuant to the mandatory guidelines sentencing scheme based on facts neither admitted by him nor found by the jury beyond a reasonable doubt. We reject appellant's contention. First, appellant did not raise it in his initial brief on appeal, and his failure is fatal. See, e.g., United States v. Ardley, 242 F.3d 989 (11th Cir. 2001). Second, and alternatively, the district court did not commit a Booker error at all. The court sentenced appellant to the mandatory minimum sentence required by law ­ 60 months imprisonment ­ because the jury found beyond a reasonable doubt that appellant's offense involved more than 100 marijuana plants. See 21 U.S.C. § 841(b)(1)(B).1 We have considered this appeal in light of United States v. Booker, and find

Appellant did not qualify for the "safety-valve" provision of 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. United States v. Laterza, No-03-12499, at 6-7. 2

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no basis for disturbing our previous decision. That decision is therefore reinstated2. SO ORDERED.

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All outstanding motions are denied as MOOT in light of the court's ruling. 3