[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 9, 2005
No. 04-10567
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 02-00551-CR-ODE-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESSIE LEE SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 9, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before BLACK, BARKETT and MARCUS, 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, __ L. Ed. 2d __ (2005). We previously
affirmed Appellant’s conviction and 262-month sentence for possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e). See
United States v. Smith, Case No. 04-10567 (11th Cir. Oct. 12, 2004)
(unpublished). The Supreme Court vacated our prior decision and remanded the
case to us for further consideration in light of Booker.
In his initial brief, Appellant challenged the sufficiency of the evidence to
support his conviction and argued that his armed-career-criminal sentence violated
the Ex Post Facto Clause and constituted cruel and unusual punishment. Notably,
Appellant did not assert error based on Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348, 147 L. Ed. 2d 435 (2000), or any other case extending or applying the
Apprendi principle. In United States v. Ardley, 242 F.3d 989 (11th Cir.),
cert. denied, 121 S. Ct. 2621 (2001), after the Supreme Court’s remand with
instructions to reconsider our opinion in light of Apprendi, we observed the
following:
Nothing in the Apprendi opinion requires or suggests that we are
obligated to consider an issue not raised in any of the briefs that
appellant has filed with us. Nor is there anything in the Supreme
Court’s remand order, which is cast in the usual language, requiring
that we treat the case as though the Apprendi issue had been timely
raised in this Court. In the absence of any requirement to the contrary
in either Apprendi or in the order remanding this case to us, we apply
our well-established rule that issues and contentions not timely raised
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in the briefs are deemed abandoned.
Id. at 990 (citations omitted); see also United States v. Nealy, 232 F.3d 825, 830
(11th Cir. 2000) (“Defendant abandoned the [Apprendi] indictment issue by not
raising the issue in his initial brief.”). We recently extended the foregoing rule to
preclude untimely challenges based on Booker. See United States v. Dockery, 401
F.3d 1261 (11th Cir. 2005). In his initial brief in this case, Appellant asserted no
such Apprendi (or its progeny) challenge to his sentence. Accordingly, we
reinstate our previous opinion in this case and affirm, once again, Appellant’s
conviction and sentence after our reconsideration in light of Booker, pursuant to
the Supreme Court’s mandate.
OPINION REINSTATED; SENTENCE AFFIRMED.
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