                                                                [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                         FOR THE ELEVENTH CIRCUIT
                                                    U.S. COURT OF APPEALS
                           ________________________   ELEVENTH CIRCUIT
                                                                September 9, 2005
                                 No. 04-10419                   THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                       D.C. Docket No. 03-60111-CR-WPD

UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,
      versus

DIEUSEUL MEILLEUR,

                                                            Defendant-Appellant
                          __________________________

                Appeal from the United States District Court for the
                           Southern District of Florida
                          _________________________

                                (September 9, 2005)

                     ON REMAND FROM THE
               SUPREME COURT OF THE UNITED STATES

Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

      This case is before the court for consideration in light of United States v.

Booker, 543 U.S. ___, 125 S.Ct. 738 (2005). We previously affirmed Meilleur’s
sentence. See United States v. Meilleur, No. 04-10419 (11th Cir. July 22, 2004)

(unpublished). The Supreme Court vacated our prior decision and remanded the

case to us for further consideration in light of Booker.

      The procedural history of this case demonstrates that Meilleur did not

present a Sixth Amendment objection – or any other constitutional or legal

objection based on the issues addressed by the Supreme Court in Booker, or

Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531 (2004) – either in the district

court or in his initial brief to this court on appeal. Instead, the issue was not raised

until after Blakely was decided, and it was raised by way of a Rule 28(j) letter.

      In United States v. Dockery, 401 F.3d 1261, 1262-63 (11th Cir. 2005), after

the Supreme Court’s remand with instructions to reconsider our opinion in light of

Booker, we relied on an earlier case of United States v. Ardley, 242 F.3d 989 (11th

Cir. 2001), in which we observed:

             Nothing in the Apprendi opinion requires or suggests that
             we are obligated to consider an issue not raised in any of
             the briefs that appellant has filed with us. Nor is there
             anything in the Supreme Court’s remand order, which is
             cast in the usual language, requiring that we treat the case
             as though the Apprendi issue had been timely raised in
             this court. . . . In the absence of any requirement to the
             contrary in either Apprendi or in the order remanding this
             case to us, we apply our well-established rule that issues
             and contentions not timely raised in the briefs are deemed
             abandoned.



                                            2
Yardley, 242 F.3d at 990 (citations omitted). Thus, because Dockery had not

asserted an Apprendi (or its progeny) challenge to his sentence, we reinstated our

previous opinion. Dockery, 401 F.3d at 1263.

       After our reconsideration of this case in light of Booker, we reinstate our

previous opinion in this case and affirm Meilleur’s sentence. Like the appellant in

Dockery, Meilleur did not assert Apprendi error (or its progeny) in his initial brief

on appeal.1

       OPINION REINSTATED IN PART; SENTENCE AFFIRMED.




       1
         Even if Meilleur had timely raised the Booker issue in his initial appellate brief, we
would review the issue for plain error only. See United States v. Rodriguez, 398 F.3d 1291, 1298
(11th Cir. 2005).
        Assuming arguendo that we conduct a plain error review, we conclude that application of
the plain error doctrine in Meilleur’s case would not require a vacatur of the sentence. While
Meilleur satisfies his burden of demonstrating the first two prongs of the plain error test, he
cannot satisfy the third and fourth prongs. Under the third prong, Meilleur has not demonstrated
that any error affected his substantial rights because he never contested the facts supporting his
sentence. United States v. Cotton, 535 U.S. 625, 633, 122 S.Ct. 1781, 1786 (2002). Moreover,
he cannot demonstrate that there is a reasonable probability of a different result if the guidelines
had been applied in an advisory instead of binding fashion. See Rodriguez, 398 F.3d at 1301.
Here, there is no record evidence indicating that the district court would have imposed a lower
sentence had the guidelines been advisory rather than mandatory. Indeed, the evidence is
directly contrary. Accordingly, Meilleur fails to demonstrate plain error.


                                                 3
TJOFLAT, Circuit Judge, specially concurring:

      In this case, appellant was convicted of importing at least 500 grams of

cocaine into the United States. At sentencing, the district court found him

accountable for 4,272 grams of cocaine, 3,772 more grams than the jury’s verdict

established. Based on that finding and appellant’s criminal history category, the

court sentenced appellant under the Guidelines mandatory sentencing scheme to

prison for 121 months (at the high end of the guidelines sentence range). In doing

so, fashioning appellant’s sentence in this way, the court committed Booker error.

       The court, however, citing United States v. Ardley, 242 F.2d 989 (11th Cir.

2001), reh’g denied, 272 F.3d 991 (11th Cir. 2001) (en banc), cert. denied, Ardley

v. United States, 535 U.S. 979 (2002), refuses to consider appellant’s Booker error

because appellant failed to assert the error in his opening brief on direct appeal. I

agree that the court is bound by Ardley and its progeny, and that, under that

precedent, appellant is deemed to have waived his Booker claim even though he

could not have known of its existence at the time he filed his opening brief. I

concur specially because I am convinced that Ardley was wrongly decided and that

we should entertain supplemental briefs on Booker’s application in this case. See

United States v. Higdon, 2005 U.S. App. LEXIS 15663, at *17 (11th Cir. July 8,

2005) (Tjoflat, dissenting from the denial of rehearing en banc).



                                           4
      In footnote 1, the court assuming that appellant is entitled to plain-error

review, holds that appellant has established Booker error and that the error is plan.

He would not be entitled to relief, though, because he “has not demonstrated that

[the] error affected his substantial rights because he never contested the facts

supporting his sentence . . . and . . . cannot demonstrate that there is a reasonable

probability of a different result if the guidelines had been applied in an advisory

instead of binding fashion. See Rodriguez, 398 F.3d at 1301.” Ante at ___. I

agree that Rodriguez imposes on a defendant standing in appellant’s shoes the

burden of proof on this prejudice issue, and that he cannot satisfy that burden

unless he can point to evidence in the record—specifically, something the court

said at sentencing—indicating that the court, had it been operating under the

sentencing model Booker has established, would have imposed a different

sentence, one more favorable to the defendant. How the court could have

anticipated the Booker model and all of its ramifications escapes me, which is why

disagree with this approach to the prejudice issue. See United States v. Rodriguez,

406 F.3d 1261, 1281 (11th Cir. 2005) (Tjoflat, dissenting from the denial of

rehearing en banc); United States v. Thompson, No. 04-12218, 2005 WL 2099784,

at * 1`7-19 (11th Cir. Sept. 1, 2005) (Tjoflat J., dissenting).




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