United States v. Gary Michael Senn

U.S. Court of Appeals for the Eleventh Circuit
United States v. Gary Michael Senn, 128 F. App'x 96 (11th Cir. 2005)

United States v. Gary Michael Senn

Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM.

This case is before the Court for consideration in light of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We previously affirmed Appel *97 lant’s conviction for conspiracy to possess with intent to distribute more than 500 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846, and carrying a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i). See United States v. Senn, 116 Fed.Appx. 247 (11th Cir. 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.

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, 147 L.Ed.2d 435 (2000), or its progeny. Although Appellant did request an opportunity to file a supplement brief addressing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), his request was denied.

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); see also United States v. Curtis, 380 F.3d 1308, 1311 (11th Cir. 2004) (Blakely claim untimely when raised for the first time in a request to file supplemental briefing).

Accordingly, we reinstate our previous opinion in this ease and affirm Appellant’s conviction and sentence.

OPINION REINSTATED; CONVICTION AND SENTENCE AFFIRMED.

Reference

Full Case Name
UNITED STATES of America, Plaintiff-Appellee, v. Gary Michael SENN, Defendant-Appellant
Status
Unpublished