United States v. Tony James Garner , 157 F. App'x 117 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 16, 2005
No. 04-11191 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00095-CR-1-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY JAMES GARNER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(November 16, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
The United States Supreme Court has remanded this case for us to
reconsider the sentence imposed in light of United States v. Booker, 543 U.S.___,
125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Garner v. United States, 126 S. Ct. 41(2005). As Garner acknowledged in his reply brief when we first heard his appeal
of his sentence, he did not raise his Booker objection 1 in his initial brief but raised
it in his motions for supplemental briefing on the issue. Normally, under our
established prudential rule, we would not consider issues not raised in the initial
briefs on appeal. United States v. Levy, 416 F.3d 1273, 1275-76 (11th Cir. 2005)
(per curiam). The fact that the Supreme Court has remanded a case to be
reconsidered in light of Booker does not “mandate any particular outcome as to the
defendant’s sentence, nor [does it] preclude this Court from applying its prudential
rules in a uniform and consistent manner.” Id. at 1280 (citations omitted).
Accordingly, having applied our prudential rule, we affirm Garner’s sentence and
reinstate our panel’s prior decision in United States v. Garner, No. 04-11191
(11the Cir. Dec. 22, 2004).
AFFIRMED AND PRIOR OPINION REINSTATED
1
At the time of his initial appeal, Booker had not been decided, and Gary raised his
objection under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
2