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[DO NOT PUBLISH]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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