United States v. Tyson Eugene Marshek

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 12, 2005
No. 03-14338 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00015-CR-01-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TYSON EUGENE MARSHEK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(May 12, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before ANDERSON and BIRCH, Circuit Judges, and ROYAL*,District Judge.
________________________
*Honorable C. Ashley Royal, United States District Judge for the Middle District of Georgia,
sitting by designation.
PER CURIAM:
We previously affirmed the sentence in this case after oral argument. United
States v. Marshek, No. 03-14338 (11th Cir. Aug. 17, 2004). 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 the sentence.
When Marshek was before this court prior to the certiorari petition being filed,
he did not raise any issue based upon Booker, Blakely v. Washington, 542 U.S. ___,
124 S. Ct. 2531 (2004), or Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348(2000).
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 district court or in his initial brief. United
States v. Dockery, __F.3d__, 2005 WL 487735 (11th Cir. Mar. 3, 2005).
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Our opinion affirming the sentence in this case is accordingly REINSTATED.
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