                                                       [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________                   FILED
                                                         U.S. COURT OF APPEALS
                              No. 02-12378                 ELEVENTH CIRCUIT
                                                               JULY 1, 2005
                          Non-Argument Calendar
                                                            THOMAS K. KAHN
                        ________________________
                                                                 CLERK

                   D. C. Docket No. 00-00028-CR-3-JTC-3

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                    versus

SAMUEL EDWARD TOUCHSTONE,
ROSCOE WALTON, JR.,

                                                       Defendants-Appellants.

                        ________________________

                 Appeals from the United States District Court
                     for the Northern District of Georgia
                       _________________________
                                (July 1, 2005)

                    ON REMAND FROM THE
              SUPREME COURT OF THE UNITED STATES

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

     This case is before the Court for consideration in light of United States v.
Booker, 543 U.S. __, 125 S. Ct. 738, __ L. Ed. 2d __ (2005). We previously

affirmed Appellant Walton’s conviction for conspiracy to possess with intent to

distribute cocaine, in violation of 21 U.S.C. § 841(b)(1)(C), 846 and 851, and 235-

month sentence. See United States v. Touchstone & Walton, Case No. 02-12378, 97

Fed. Appx. 904 (11th Cir. 2004) (Table). The Supreme Court vacated our prior

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

      In his initial brief, Walton argued that: (1) the district court constructively

amended the indictment by its response to a jury question; (2) the district court’s

calculation of drug quantity, for purposes of determining his sentencing guideline,

was based on hearsay evidence; and (3) the evidence did not support the district

court’s sentencing him as a leader or manager of the conspiracy. Notably, Walton

raised no constitutional sentencing challenge, nor did he otherwise assert error based

on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),

or any other case extending or applying the Apprendi principle.

      In United States v. Ardley, 242 F.3d 989 (11th Cir.), cert. denied, 121 S. Ct.

2621 (2001), after the Supreme Court’s remand with instructions to reconsider our

opinion in light of Apprendi, we observed the following:

      Nothing in the Apprendi opinion requires or suggests that we are
      obligated to consider an issue not raised in any of the briefs that
      appellant has filed with us. Nor is there anything in the Supreme Court’s

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      remand order, which is cast in the usual language, requiring that we treat
      the case as though the Apprendi issue had been timely raised in this
      Court. In the absence of any requirement to the contrary in either
      Apprendi or in the order remanding this case to us, we apply our
      well-established rule that issues and contentions not timely raised in the
      briefs are deemed abandoned.

Id. at 990 (citations omitted); see also United States v. Nealy, 232 F.3d 825, 830

(11th Cir. 2000) (“Defendant abandoned the [Apprendi] indictment issue by not

raising the issue in his initial brief.”). We recently extended the foregoing rule to

preclude untimely challenges based on Booker. See United States v. Dockery, __

F.3d __, 2005 WL 487735 (11th Cir. Mar. 3, 2005). In his initial brief in this case,

Walton asserted no such Apprendi (or its progeny) challenge to his sentence.

      Accordingly, we reinstate our previous opinion in this case and affirm, once

again, Walton’s conviction and sentence after our reconsideration in light of Booker,

pursuant to the Supreme Court’s mandate.

      OPINION REINSTATED; SENTENCE AFFIRMED.




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