                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                      FILED
                                                           U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                               No. 03-13921                      October 13, 2005
                           Non-Argument Calendar              THOMAS K. KAHN
                         ________________________                    CLERK

                    D.C. Docket No. 02-00094-CR-3-RV-003

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                     versus

LESLY ALEXIS
a.k.a. “X”, etc.,

                                                        Defendant-Appellant.

                        __________________________

               Appeal from the United States District Court for the
                          Northern District of Florida
                        ________________________
                              (October 13, 2005)


                     ON REMAND FROM THE
               SUPREME COURT OF THE UNITED STATES

Before TJOFLAT, BLACK and MARCUS, Circuit Judges.

PER CURIAM:
      This case is before the Court for consideration in light of United States v.

Booker, 125 S. Ct. 738 (2005). We previously affirmed Alexis’ conviction and

sentence. See United States v. Alexis, Case No. 03-13921 (11th Cir. Dec. 1, 2004)

(unpublished). The Supreme Court vacated our prior decision and remanded the

case to us for further consideration in light of Booker.

      In his initial brief on direct appeal, Alexis did not assert error based on

Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), or any other case extending or

applying the Apprendi principle. However, Alexis sought permission to file a

supplemental brief to present additional arguments concerning Blakely v.

Washington, 124 S. Ct. 2531 (2004). We granted Alexis’ motion, but the

Government asked for reconsideration. We granted reconsideration on September

8, 2004, and decided to consider the case on the briefs previously filed.

      In United States v. Sears, 411 F.3d 1240, 1241 (11th Cir. 2005), a case with

a procedural history similar to this one, we held that Booker did not require us to

alter our prior decision because Sears did not raise a Booker issue in his initial

brief, was denied leave to file a supplemental brief raising Booker, and nothing in

the Supreme Court’s remand order demanded a different conclusion. The same

reasoning holds in this case.




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      Because Alexis did not assert error based on Apprendi (or its progeny) in his

initial brief on appeal, we reinstate our previous opinion in this case and affirm

Alexis’ conviction and sentence after our reconsideration in light of Booker,

pursuant to the Supreme Court’s mandate.

      OPINION REINSTATED IN PART; AFFIRMED IN PART.




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TJOFLAT, Circuit Judge, specially concurring:

      The court declines to consider appellant’s Booker claim on the merits

because appellant failed to present the claim in his initial brief on appeal. Binding

precedent requires us to disregard the claim for that reason. See United States v.

Ardley, 242 F.3d 989, reh’g en banc denied, 273 F.3d 991 (11th Cir. 2001), and

its progeny, e.g., United States v. Sears, 411 F.3d 1240 (11th Cir. 2005). I

therefore concur in the court’s judgment. Were we writing on a clean slate, I

would, for the reasons I have previously expressed, entertain appellant’s Booker

claim on the merits. See United States v. Higdon, 2005 U.S.App. LEXIS, at *17

(11th Cir. July 8, 2005).




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