United States v. Harry Willis Davis

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 2, 2005
No. 03-15336 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00073 CR-1-CB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HARRY WILLIS DAVIS,
a.k.a. Harry Willie Davis,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(May 2, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before ANDERSON, CARNES and RONEY, Circuit Judges.
PER CURIAM:
We previously affirmed the conviction and sentence in this case. See United
States v. Davis, No. 03-15336 (11th Cir. Oct. 13, 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 conviction and sentence.
When Davis 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).
While Davis had made a challenge to the drug quantity found by the judge at
sentencing, he only challenged the sufficiency of the evidence. We have held that a
challenge to sufficiency of the evidence is not sufficient to preserve a Booker claim.
United States v. Dowling, __F.3d __, 2005 WL 658938 at *3 (11th Cir. Mar. 23,
2005).
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
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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).
Our opinion affirming the conviction and sentence in this case is accordingly
REINSTATED.
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