USA v. Sylvester Eugene Bennett, (11th Cir. 2006)
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[D O NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 22, 2006
THOMAS K. KAHN
N o . 05-15728
CLERK
N o n - A r g u m e n t Calendar
D . C. Docket No. 02-00259-CR-T-26-MSS
U N IT E D STATES OF AMERICA,
Plaintiff-Appellee,
versus
SYLVESTER EUGENE BENNETT,
Defendant-Appellant.
A p p e al from the United States District Court
fo r the Middle District of Florida
(J u n e 22, 2006)
B efo re TJOFLAT, ANDERSON and BIRCH, Circuit Judges.
P E R CURIAM:
T h is case is before us for the third time. In United States v. Bennett, No. 021 6 8 6 8 (decided July 28, 2003) (unpublished), we affirmed appellant's prison sen ten ce of 216 months for committing bank robbery in violation of 18U.S.C. §§ 2 1 1 3 ( a) and (d). In our opinion, we noted that "[a]ppellant is a career offender." Appellant thereafter moved the district court pursuant 28U.S.C. § 2255 to vacate h is sentence on the ground that he should not have been convicted of violating 18 U .S .C . § 2113(d) because, in pleading guilty, he did not admit the elements of § 2 1 1 3 ( d ) , specifically, that the offense involved "a dangerous weapon or device." The Government confessed error, stating that appellant's conviction should have b een under 18U.S.C. § 2113(a) only, so the court vacated appellant's sentence. At th e subsequent resentencing hearing, the court, adhered to its previous d eterm in atio n that appellant was a career offender and this time sentenced him to p riso n for a term of 169 months.
Appellant appealed this sentence, contending that the court imposed it in v io latio n of United States v. Booker, 543 U.S. , 125 S.Ct. 738, 160 L.Ed.2d 6 2 1 (2005). After concluding that the district court had properly determined ap p ellan t's sentence range under the Guidelines  in particular, by classifying a p p e lla n t as a career offender  we found Booker statutory error because the court h ad treated the Guidelines as mandatory, rather than advisory. Since the G o v e rn m e n t was unable to demonstrate that the error was harmless, we vacated ap p ellan t's sentence and remanded the case for resentencing. United States v. H ig h to w e r, No. 04-16358 (decided July 28, 2005) (unpublished).
O n resentencing, appellant objected to his career offender classification on th e ground that the indictment failed to allege that he was a career offender as, he co n ten d ed , Booker requires. The court overruled his objection, and at the co n clu sio n of the hearing, sentenced him to prison for a term of 151 months, at the lo w end of the Guidelines sentence range. He now appeals that sentence, reiteratin g the objection he presented to the district court  that, under Booker, his p rio r convictions should have been alleged in the indictment.1 T h e law-of-the-case doctrine forecloses appellant's Booker objection. In his p rio r appeal, No. 04-16358, appellant argued that the district court erred in c la ss if yin g him as a career offender. We rejected his argument, and the district co u rt, obeying our mandate, properly resentenced him as such.
AFFIRMED.
1 Appellant admitted at sentencing that the challenged prior convictions were valid. His objection was, by his own admission, an attempt collaterally to attack the convictions.
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