United States v. Charles Mosley

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-11189 JUNE 2, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00171-CR-1-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES MOSLEY,
a.k.a. Charles Clinton Mosley,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(June 2, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before ANDERSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
We previously affirmed the sentence in this case. United States v. Mosley, No.
04-11189 (11th Cir. Oct. 7, 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.
In our initial opinion, we declined to address Mosley's argument based on
Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004) because he did not raise
it in his initial brief or in the district court. The Supreme Court's decision in Booker
did not change this fact.
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
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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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