United States v. Tony James Garner

157 F. App'x 117

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 16, 2005
• Docket: 04-11191
• Status: Unpublished

Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM:

The United States Supreme Court has remanded this case for us to reconsider the sentence imposed in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Garner v. United States, — U.S. —, 126 S.Ct. 41, 163 L.Ed.2d 31 (2005). As Garner acknowledged in his reply brief when we first heard his appeal of his sentence, he did not raise his Booker objection 1 in his initial brief but raised it in his motions for supplemental briefing on the issue. Normally, under our established prudential rule, we would not consider issues not raised in the initial briefs on appeal. United States v. Levy, 416 F.3d 1273, 1275-76 (11th Cir.2005) (per curiam). The fact that the Supreme Court has remanded a case to be reconsidered in light of Booker does not “mandate any particular outcome as to the defendant’s sentence, nor [does it] preclude this Court from applying its prudential rules in a uniform and consistent manner.” Id. at 1280 (citations omitted). Accordingly, having applied our prudential rule, we affirm Garner’s sentence and reinstate our panel’s prior decision in United States v. Garner, 126 Fed.Appx. 463 (11th Cir.2004).

AFFIRMED AND PRIOR OPINION REINSTATED

1 . At the time of his initial appeal, Booker had not been decided, and Gary raised his objec tion under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).