United States v. Gustavo Gomes Rivas
United States v. Gustavo Gomes Rivas
Opinion
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 *819 aboard a vessel subject to United States jurisdiction, in violation of 46 App.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 light of United States v. Booker, — 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.
. We issued our opinion affirming the convictions and sentences before the U.S. Supreme Court decided Booker and Blakely v. Washington, 542 U.S. 296, 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, 403 F.3d 1242, 1244-46, manuscript op. at 6-10 (11th Cir. 2005) (explaining the manner in which a defendant may preserve challenges to the constitutionality of a sentence).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.