United States v. Jerry Joseph Higdon, Jr. , 159 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[DO NOT PUBLISH]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
No. 03-14365 DECEMBER 13, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00043-CR-N-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRY JOSEPH HIGDON, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(December 13, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before ANDERSON, CARNES and HULL, Circuit Judges.
PER CURIAM:
We previously affirmed the conviction and sentence in this case. See
United States v. Higdon, 122 Fed. Appx. 985 (11th Cir. 2004). Later, we denied
rehearing en banc. See United States v. Higdon, 418 F.3d 1136 (11th Cir. 2005).
The Supreme Court has vacated our prior judgment and remanded the case to us
for further consideration in light of Booker v. United States, 543 U.S. __, 125
S.Ct. 738 (2005). Having reconsidered our decision pursuant to the Supreme
Court’s instructions, we reinstate our judgment affirming conviction and sentence.
In our opinion accompanying our denial of rehearing en banc, we noted:
At no time in the district court or in his initial brief on appeal did
Higdon challenge the constitutionality of any extra-verdict sentencing
enhancement or assert that the district court lacked the authority to
impose the enhancements under a preponderance-of-the-evidence
standard. Instead, approximately three months after briefing was
completed in the case, Higdon filed a motion to file a supplemental
brief raising a Blakely issue.
418 F.3d at 1137. Following the well-established rule in this circuit, see United
States v. Levy, 379 F.3d 1241, 1242 (11th Cir. 2004), reh'g en banc denied, 391
F.3d 1327 (11th Cir. 2004), issues that are not timely raised in the briefs are
deemed abandoned. In United States v. Ardley, 242 F.3d 989, 990 (11th Cir.
2001), we applied this rule to a case remanded from the Supreme Court in light of
Apprendi. Recently, we applied Ardley to a post-Booker remand and found that
the defendant had abandoned his Booker claim because he failed to raise it at the
2
district court or in his initial brief. United States v. Dockery, 401F.3d 1261 (11th
Cir. 2005).
Our opinion affirming the conviction and sentence in this case is
accordingly REINSTATED.1
1
The motion to withdraw as appointed counsel for appellant, filed by attorney Michael J.
Peterson, is granted. Attorney Maryanne Melko Prince is hereby appointed to represent
appellant.
3