                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT           FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 03-10655                NOVEMBER 2, 2005
                          Non-Argument Calendar            THOMAS K. KAHN
                        ________________________               CLERK


                   D.C. Docket No. 01-00239-CR-J-21-HTS

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

     versus

ANTHONY JOHNSON,
a.k.a. Carl M. Neely,
a.k.a. Reginald S. Daniels,
a.k.a. William Fritz,
a.k.a. Maurice J. Nutt,
DARREN LAMONT KEYS,
a.k.a. Roderick Bremby,
a.k.a. Mark R. Estep,

                                                 Defendant-Appellant.
                       __________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                              (November 2, 2005)

                    ON REMAND FROM THE
              SUPREME COURT OF THE UNITED STATES
Before TJOFLAT, MARCUS and COX, Circuit Judges.

PER CURIAM:


      This case is before the court for reconsideration in light of United States v.

Booker, __ U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). A jury found the

defendant guilty of multiple counts involving fraud, identity theft, and conspiracy,

and sentenced him to a total of 137 months’ imprisonment and 60 months’

supervised release. We previously affirmed the defendant’s convictions and

sentences. See United States v. Johnson, 97 Fed. Appx. 904 (11th Cir. 2004)

(Table Decision). The Supreme Court vacated our prior decision and remanded

the case to us for reconsideration in light of Booker. Keys v. United States, 125 S.

Ct. 1052 (2005). For the reasons that follow, we reinstate our prior decision

affirming the defendant’s convictions and sentences.

      Our circuit precedent holds that any argument not raised in a party’s initial

brief is considered abandoned. United States v. Dockery, 401 F.3d 1261, 1262-63

(11th Cir. 2005), cert. denied, Case No. 05-5714 (Oct. 11, 2005). The Booker

decision did nothing to abrogate that well-settled rule. United States v. Ardley,

242 F.3d 989, 990 (11th Cir. 2005). In his initial appellate brief, the defendant

raised three issues: (1) insufficiency of the evidence, (2) noncompliance with

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U.S.S.G. §4A1.3 in issuing an upward sentencing departure, and (3) violation of

the Due Process Clause due to insufficient notice of the Government’s intent to

seek an upward departure. Nowhere in the defendant’s initial appellate brief did

he raise any issue regarding the constitutionality of the United States Sentencing

Guidelines or the violation of his Sixth Amendment right to trial by jury. Nor did

the defendant rely on or even refer to Apprendi v. New Jersey, 530 U.S. 466, 120

S. Ct. 2348 (2000), or its progeny. Thus, the defendant abandoned his Booker

argument. Accordingly, we reinstate our prior opinion affirming the defendant’s

convictions and sentences.

      OPINION REINSTATED; CONVICTIONS AND SENTENCES

AFFIRMED.




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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.

Dockery, 401 F.3d 1261, 1262-63 (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, see United States v. Higdon, 418 F.3d 1136, 1142 (11th Cir. 2005)

(Tjoflat, J., dissenting from the denial of rehearing en banc), entertain appellant’s

Booker claim on the merits. Otherwise, the claim will likely resurface in a

proceeding initiated by appellant pursuant to 28 U.S.C. § 2255, in which he

contends that his lawyer denied him effective assistance of counsel when he failed

to anticipate Booker’s holding and include a Booker-type claim in his initial brief.

See United States v. Vanorden, 414 F.3d 1321, 1323 (11th Cir. 2005) (Tjoflat, J.,

specially concurring). It is obvious, at least to me, that it would be far more

efficient to entertain the ineffective-assistance claim now rather than require the

district court to hear and rule on the claim which, if denied, would certainly be

back on our doorstep with an application for a certificate of appealability (if the

district court failed to grant one) and a full-blown appeal.

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