United States v. George Billingslea

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 19, 2005
No. 03-12483 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 00-08161-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE BILLINGSLEA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 19, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
This case is before the Court for consideration in light of United States v.
Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). We previously affirmed Appellant’s
conviction for bank robbery, in violation of 18 U.S.C. § 2133(a), (d). See United
States v. Billingslea, No. 03-12483 (11th Cir. May 5, 2004). The Supreme Court
has vacated our prior decision and remanded the case to us for further
consideration in light of its decision in Booker.
In his initial brief, Billingslea argued that: (1) the district court abused its
discretion by empaneling an anonymous jury; (2) the district court abused its
discretion by allowing a government witness to testify via satellite video
transmission; (3) the district court plainly erred by admitting an unavailable
declarant’s photograph identification of Billingslea; and (4) there was insufficient
evidence to sustain his conviction. Nowhere in his initial brief did Appellant raise
a constitutional challenge to his sentence or assert any error based on Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), or its progeny. Thus,
Appellant’s Blakely/Booker claim was not timely raised in this Court. As there is
nothing in the Supreme Court remand suggesting that we treat this claim as timely,
we deem Appellant’s untimely Blakely/Booker claim abandoned. See United
States v. Dockery, 401 F.3d 1261, 1262-63 (11th Cir. 2005) (citation omitted).
Accordingly, we reinstate our previous opinion in this case and affirm
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Appellant’s sentence.
OPINION REINSTATED; CONVICTION AND SENTENCE AFFIRMED.
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TJOFLAT, Circuit Judge, specially concurring:
The court declines to consider appellant’s Booker claim on the merits
because appellant failed to present the claim in his initial brief on appeal. Binding
precedent requires us to disregard the claim for that reason. See United States v.
Ardley, 242 F.3d 989, reh’g en banc denied, 273 F.3d 991 (11th Cir. 2001), and its
progeny, e.g., United States v. Dockery, 401 F.3d 466 (11th Cir. 2005), cited by
the court. Ante at ___. I therefore concur in the court’s judgment. Were we
writing on a clean slate, I would, for the reasons I have previously expressed,
entertain appellant’s Booker claim on the merits. See United States v. Higdon,
2005 U.S.App. LEXIS, at *17 (11th Cir. July 8, 2005).
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