                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                                FILED
                       ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                               July 07, 2005
                             No. 03-15747
                                                         THOMAS K. KAHN
                         Non-Argument Calendar               CLERK
                       ________________________

                    D. C. Docket No. 01-00054-CR-8-2

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

CONSTANTINO DUARTE-BENITEZ,
a.k.a Dino,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                              (July 7, 2005)

             ON REMAND FROM THE SUPREME COURT
                    OF THE UNITED STATES

Before BIRCH, CARNES and HULL, Circuit Judges.

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

543 U.S.    , 125 S. Ct. 738 (2005). We previously affirmed Duarte-Benitez’s

sentence. See United States v. Duarte-Benitez, No. 03-15747 (11th Cir. Nov. 8,

2004). The Supreme Court vacated our opinion and remanded the case to us for

further consideration in light of Booker. Duarte-Benitez v. United States,             U.S.

, 125 S. Ct. 1360 (2005).

       On direct appeal, Duarte-Benitez 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 his initial brief or during the time

allowed to file a reply brief.1

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

we addressed a similar situation: a remand from the Supreme Court with

instructions to consider our opinion in light of Booker in an appeal in which the

appellant did not timely raise either a constitutional or Apprendi challenge to his

sentence. Id. at 1262. We applied “our well-established rule that issues . . . not

timely raised in the briefs are deemed abandoned,” reinstated our previous opinion,



       1
          On 30 June 2004, Duarte-Benitez filed a supplemental authority, arguing that his Sixth
Amendment rights were violated because his aggravating role was not determined beyond a
reasonable doubt by a jury and citing Blakely v. Washington, 542 U.S. , 124 S. Ct. 2531 (2004).
We granted the government’s motion to strike because the supplemental authority raised an issue
not previously raised in Duarte-Benitez’s initial brief. See Duarte-Benitez, slip at 10-11.

                                               2
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 Duarte-Benitez 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 Duarte-Benitez’s

sentence.

       OPINION REINSTATED; SENTENCE AFFIRMED.




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