FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 24, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-10744

Non-Argument Calendar

________________________

D. C. Docket No. 03-00020-CR-FTM-29-DNF

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ANGELO J. GIORDANO, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

 (August 24, 2005)

ON REMAND FROM THE 

SUPREME COURT OF THE UNITED STATES

Before BIRCH, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
 On 16 July 2004, Giordano moved for leave to file a supplemental initial brief, arguing that

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his Sixth Amendment rights were violated because his sentence was enhanced based on facts neither

determined by a jury beyond a reasonable doubt nor admitted by Giordano and citing Blakely v.

Washington, 542 U.S. 296 , 124 S. Ct. 2531 (2004). See Giordano I, slip op. at 5-6. We denied

Giordano’s motion, citing United States v. Levy, 379 F.3d 1241 (11th Cir. 2004) (holding that an

appellant waived a Blakely claim by failing to address it within his initial appellate brief). Giordano

I, slip op. at 5. Giordano also raised a Blakely issue in his reply brief. Again, citing Levy, we

refused to review it because it was not raised in Giordano’s initial brief. See id. at 5-6. 

By extension, an issue raised under Apprendi raises an issue pursuant to Blakely and

Booker. United States v. Grant, 397 F.3d 1330, 1331 (11th Cir. 2005).

We note that, even if Giordano had timely raised Apprendi, or been granted leave to file a

supplemental brief raising Apprendi, Giordano is unable to satisfy his burden to show that his

substantial rights and the outcome of the proceedings were affected because Giordano was sentenced

at the highest end of the guideline range and the district court expressed no reservation about

imposing such a sentence. See generally R1-68; United States v. Shelton, 400 F.3d 1325, 1331-32

(11 Cir. 2005); United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, U.S. th

 , 125 S. Ct. 2935 (2005).

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This case is before us for consideration in light of United States v. Booker,

543 U.S. , 125 S. Ct. 738 (2005). Giordano v. United States, U.S. , 125 S.

Ct. 1944 (2005). We previously affirmed Giordano’s sentence. See United States

v. Giordano, No. 04-10744 (11th Cir. Dec. 9, 2004) (“Giordano I”). In his initial

brief on appeal, Giordano argued that the district court abused its discretion by not

grouping the money laundering and fraud charges under the United States

Sentencing Guidelines. Id., slip op. at 5. The Supreme Court vacated our

judgment and remanded the case to us for further consideration in light of Booker.

Giordano did not assert error on the basis of Apprendi v. New Jersey, 530

U.S. 466, 120 S. Ct. 2348 (2000), or any other case extending or applying the

Apprendi principle in the district court or in his initial brief on appeal. 

1
3

In United States v. Dockery, 401 F.3d 1261 (11th Cir. 2005) (per curiam), 

we addressed a case presenting a similar procedural situation: a remand from

thehy Supreme Court with instructions to consider our opinion in light of Booker

in an appeal in which the appellant did not raise either a constitutional or Apprendi

challenge to his sentence. Id. at 1262. In Dockery, we applied “our wellestablished rule that issues . . . not timely raised in the briefs are deemed

abandoned,” reinstated our previous opinion, and affirmed Dockery’s sentence. 

Id. at 1262-63 (quoting United States v. Ardley, 242 F.3d 989, 990 (11th Cir.

2001) (per curiam)). Such is the procedure we will follow in this case because

Giordano failed to raise an Apprendi challenge to his sentence in his initial brief. 

We reinstate our previous opinion and, upon reconsideration in light of

Booker, pursuant to the Supreme Court’s remand, affirm Giordano’s sentence.

OPINION REINSTATED; SENTENCE AFFIRMED.