United States v. Gary Michael Senn , 128 F. App'x 96 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 29, 2005
No. 02-16983
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00017-CR-5-002
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY MICHAEL SENN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(April 29, 2005)
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
This case is before the Court for consideration in light of United States v.
Booker, ___ U.S. ___, 125 S. Ct. 738 (2005). We previously affirmed Appellant’s
conviction for conspiracy to possess with intent to distribute more than 500 grams
of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846,
and carrying a firearm during a drug trafficking offense, in violation of 18 U.S.C. §
924(c)(1)(A)(i). See United States v. Senn, No. 02-16983 (11th Cir. August 10,
2004). The Supreme Court has vacated our prior decision and remanded the case
to us for further consideration in light of its decision in Booker.
Nowhere in his initial brief did Appellant raise a constitutional challenge to
his sentence or assert any error based on Apprendi v. New York, 530 U.S. 466, 120
S. Ct. 2348 (2000), or its progeny. Although Appellant did request an opportunity
to file a supplement brief addressing Blakely v. Washington, ___ U.S. ___, 124 S.
Ct. 2531 (2004), his request was denied.
Appellant’s Blakely/Booker claim was not timely raised in this Court. As
there is nothing in the Supreme Court remand suggesting that we treat this claim as
timely, we deem Appellant’s untimely Blakely/Booker claim abandoned. See
United States v. Dockery, 401 F.3d 1261, 1262-63 (11th Cir. 2005) (citation
omitted); see also United States v. Curtis, 380 F.3d 1308, 1311 (11th Cir. 2004)
(Blakely claim untimely when raised for the first time in a request to file
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supplemental briefing).
Accordingly, we reinstate our previous opinion in this case and affirm
Appellant’s conviction and sentence.
OPINION REINSTATED; CONVICTION AND SENTENCE AFFIRMED.
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