United States v. Carlos David Herrera

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_____________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-14549 August 22, 2005
Non-Argument Calendar THOMAS K. KAHN
____________________________ CLERK
D. C. Docket No. 02-00586-CR-BBM-1-11
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS DAVID HERRERA,
Defendant-Appellant.
_______________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________________
(August 22, 2005)
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before EDMONDSON, Chief Judge, CARNES and HULL, Circuit Judges.
PER CURIAM:
This case is before the Court for consideration in the light of United States
v. Booker, 125 S. Ct. 738 (2005). We affirmed previously Appellant’s 120-month
sentence imposed after he entered a non-negotiated plea of guilty to drug
trafficking offenses. See United States v. Herrera, No. 03-14549 (11th Cir. August
16, 2004). The Supreme Court has vacated our prior decision and remanded the
case to us for further consideration in the light of its decision in Booker.
Appellant raised no constitutional challenge to his sentence and asserted no
error based on Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), or its progeny, in
his initial and reply briefs. In United States v. Dockery, 401 F.3d 1261, 1262 (11th
Cir. 2005), we concluded that “‘our well-established rule that issues and
contentions not timely raised in the briefs are deemed abandoned,’” (quoting
United States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001) applies to Booker
error; an appellant who fails to raise a Booker/Apprendi issue in his initial brief
has abandoned that error on appeal.
No Booker/Apprendi sentence challenge has been raised timely --or at all --
in this case. We reinstate our previous opinion and affirm, once again, Appellant’s
sentence after our reconsideration in the light of Booker, pursuant to the Supreme
Court’s mandate.
OPINION REINSTATED; SENTENCE AFFIRMED.
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