[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-16388 March 3, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00011-CR-1-JTC-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARRY DOCKERY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(March 3, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before BIRCH, DUBINA 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 sentence. See United States v. Dockery, Case No. 03-16388
(11th Cir. Sept. 16, 2004) (unpublished). The Supreme Court vacated our prior
decision and remanded the case to us for further consideration in light of Booker.
On appeal, Appellant challenges his 87-month sentence, imposed pursuant to
his guilty plea, for knowingly transporting child pornography through the Internet by
computer, in violation of 18 U.S.C. § 2252A(a)(1). In his initial brief, Dockery
argued that the district court erred by enhancing his sentence, pursuant to U.S.S.G.
§ 2G2.2(b)(4), because he did not engage in a pattern of activity involving the
attempted sexual abuse or exploitation of a minor, within the meaning of §
2G2.2(b)(4). More specifically, Appellant asserted that because he did not show up
for Internet-arranged meetings with the minors, he took no “substantial step” toward
the alleged criminal conduct. Appellant did not raise a constitutional challenge to his
sentence, nor did he 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
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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 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.”). In the initial brief in this case, Appellant
likewise 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 sentence after our reconsideration in light of Booker, pursuant to
the Supreme Court’s mandate.
OPINION REINSTATED IN PART; SENTENCE AFFIRMED.
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