[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 03-11967 and 03-11972
September 14, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket Nos. 02-20093-CR-KMM
and 02-20615-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO GARCIA,
Defendant-Appellant.
_________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(September 14, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before TJOFLAT, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Last year we affirmed the appellant’s conviction and sentence for drug
conspiracy. United States v. Garcia, No. 03-11967 (11th Cir. Mar. 9, 2004)
(unpublished). The case is back before us on remand from the Supreme Court for
further consideration in light of Booker v. United States, 543 U.S. __, 125 S. Ct.
738 (2005).
The appellant did not raise any Booker-related issue in his brief to this court.
The first time he raised any Booker-related issue in any court was in his certiorari
petition to the Supreme Court. For that reason, our decision on this remand is
controlled by United States v. Dockery, 401 F.3d 1261 (11th Cir. 2005) (per
curiam), which held in materially identical circumstances that the appellant was
procedurally barred from relief on the Booker issue because of his failure to raise
the issue when the case was first before us. Id. at 1262–63; see also United States
v. Levy, __ F.3d __, 2005 WL 1620719 (11th Cir. July 12, 2005) (per curiam);
United States v. Pipkins, 412 F.3d 1251, 1251 (11th Cir. 2005) (per curiam);
United States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001) (per curiam).
Accordingly, we reinstate our previous opinion in this case affirming the
conviction and sentence.
OPINION REINSTATED; 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 2. 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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