United States v. Luis Morales

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 03-16108 ELEVENTH CIRCUIT
JUNE 16, 2005
________________________
D.C. Docket No. 03-00083-CR-T-26-EAJ THOMAS K. KAHN
CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS MORALES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 16, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before CARNES, HULL and RONEY, Circuit Judges.
PER CURIAM:
On January 24, 2005, the Supreme Court granted Luis Morales’s petition for
writ of certiorari and vacated our decision dismissing his appeal of the district
court’s 168-month sentence based on a guilty plea, for conspiracy to possess with
intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§
846 and 841(b)(1)(A). The Court remanded the case to us for further
consideration in light of United States v. Booker, 125 S. Ct. 738 (2005).
Both parties have submitted supplemental letter briefs addressing the
implications of Booker, if any, to the facts and circumstances of this case. This
Court has recently reaffirmed its “‘well-established rule that issues and contentions
not timely raised in the briefs are deemed abandoned.’” United States v. Dockery,
401 F.3d 1261, 1262-63 (11th Cir. 2005) (quoting United States v. Ardley, 242
F.3d 989, 990 (11th Cir. 2001)). Although neither Blakely v. Washington, 124 S.
Ct. 2531 (2004) nor Booker had been decided at the time of the filing of Morales’s
initial brief in this Court, it is undisputed that Morales had failed to challenge the
constitutionality of the sentencing guidelines or his sentencing proceeding in
general pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000) in his initial brief
in this Court. His Booker claim challenging his sentence is therefore deemed
abandoned. See Dockery, 401 F.3d at 1262-63.
Accordingly, after our reconsideration of this case in light of Booker, we
reinstate our previous opinion and affirm Morales’s sentence.
OPINION REINSTATED; SENTENCE AFFIRMED.
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