United States v. Lourdes Garcia-Rodriguez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
________________________ APRIL 19, 2005
THOMAS K. KAHN
No. 03-10348 CLERK
Non-Argument Calendar
________________________
D.C. Docket No. 01-00993-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LOURDES GARCIA-RODRIGUEZ,
NANCY TOROGUET-CERVANTES,
Defendants-Appellants.
__________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(April 19, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before BIRCH, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
This case is before the Court for consideration in light of United States v.
Booker, 125 S. Ct. 738 (2005). We previously affirmed Garcia-Rodriguez’ and
Toroguet-Cervantes’ convictions and sentences. See United States v. Garcia-
Rodriguez, Case No. 03-10348 (11th Cir. Feb. 24, 2004) (unpublished). The
Supreme Court vacated our prior decision and remanded the case to us for further
consideration in light of Booker.
On appeal, neither Garcia-Rodriguez or Toroguet-Cervantes asserted error
based on Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), or any other case
extending or applying the Apprendi principle.
In United States v. Dockery, 11th Cir., 2005, __ F.3d __ (No. 03-16388,
March 3, 2005), after the Supreme Court’s remand with instructions to reconsider
our opinion in light of Booker, we relied on our earlier case of United States v.
Ardley, 242 F.3d 989 (11th Cir.), cert. denied, 121 S. Ct. 2621 (2001), which
observed:
Nothing in the Apprendi opinion requires or suggests that we are
obligated to consider an issue not raised in any of the briefs that
appellant has filed with us. Nor is there anything in the Supreme
Court’s remand order, which is cast in the usual language, requiring
that we treat the case as though the Apprendi issue had been timely
raised in this Court. In the absence of any requirement to the contrary
in either Apprendi or in the order remanding this case to us, we apply
2
our well-established rule that issues and contentions not timely raised
in the briefs are deemed abandoned.
Ardley, 242 F.3d at 990 (citations omitted). Thus, because Dockery had not
asserted an Apprendi (or its progeny) challenge to his sentence, we reinstated our
previous opinion. Dockery, 11th Cir., 2005, __ F.3d __ (No. 03-16388, March 3,
2005).
Because neither Garcia-Rodriguez or Toroguet-Cervantes asserted error
based on Apprendi (or its progeny) in their appeals, we reinstate our previous
opinion this case and affirm, once again, Garcia-Rodriguez’ and Toroguet-
Cervantes’ convictions and sentences after our reconsideration in light of Booker,
pursuant to the Supreme Court’s mandate.
OPINION REINSTATED IN PART; AFFIRMED.
3