                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                    FOR THE ELEVENTH CIRCUIT
                                                      U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                      ________________________               June 28, 2005
                                                         THOMAS K. KAHN
                            No. 04-10463                       CLERK
                        Non-Argument Calendar
                      ________________________

                  D. C. Docket No. 01-00981-CR-KMM


UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,

                                 versus

CECILIO NUNEZ,

                                               Defendant-Appellant.

                      ________________________

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

                             (June 28, 2005)

    ON REMAND FROM THE UNITED STATES SUPREME COURT

Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:
      This case is before this Court for the third time. In the two previous

appeals, we addressed issues related to Nunez’s convictions and his motion for a

new trial. United States v. Nunez, Nos. 02-15239 & 02-15426 (11th Cir. Aug. 28,

2003), and United States v. Nunez, No. 04-10463 (11th Cir. Aug. 26, 2004). Now,

this case is before the Court on remand for consideration of Nunez’s sentence in

light of United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005).

                               I. BACKGROUND

      Nunez was convicted of: (1) conspiracy to commit robbery under the Hobbs

Act, in violation of 18 U.S.C. § 1951(a); (2) conspiracy to use a firearm during a

crime of violence and drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)

and (o); (3) two counts of Hobbs Act robbery, in violation of 18 U.S.C. §§ 2 and

1951(a); and (4) using a firearm during a crime of violence and drug trafficking

crime, in violation of 18 U.S.C. §§ 2 and 924(c).

      Following his convictions, but before sentencing, Nunez moved for a new

trial. The district court denied the motion and sentenced Nunez to 272 months’

imprisonment. On appeal, this Court vacated the district court’s order denying

Nunez’s new trial motion, and remanded for an evidentiary hearing. United States

v. Nunez, Nos. 02-15239 & 02-15426 (11th Cir. Aug. 28, 2003). After the

hearing, the district court denied Nunez’s new trial motion for a second time. On

                                         2
appeal, this Court affirmed. United States v. Nunez, No. 04-10463 (11th Cir. Aug.

26, 2004). In both prior appeals, Nunez challenged only his convictions and the

denial of his motion for a new trial.

       Nunez did not raise any challenge to his sentence in the prior two appeals.1

Nunez did not assert error based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.

Ct. 2348 (2000), or any other case extending or applying the Apprendi principle.

                                      II. DISCUSSION

       In United States v. Ardley, 242 F.3d 989 (11th Cir. 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 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.




       1
        Nunez did object in the district court to the inclusion in the PSI of a January 13, 2000
robbery for which he was not convicted and which increased his sentence. However, his
objection in the district court to the robbery was based on the sufficiency of the evidence. It was
not a constitutional challenge.

                                                 3
Id. at 990 (internal citations and citations omitted). We have applied Ardley to

several post-Booker-remand decisions and have concluded that defendants

abandoned their Booker claims when they failed to raise them in the district court

or in their initial brief in this Court. See United States v. Dockery, 401 F.3d 1261,

1262 (11th Cir. 2005); see also United States v. Pipkins, – F.3d – , 2005 WL

1421449, at *1 (11th Cir. June 20, 2005) (“The well-established law in our circuit

requires that issues be raised in the parties’ initial brief.”); United States v. Sears,

– F.3d –, 2005 WL 1334892, at *1 (11th Cir. June 8, 2005) (stating that “[t]he

Appellant’s failure to raise the [Booker] issue in his initial brief bars him from

doing so now”).

      All of these post -Booker cases were remanded using the same or nearly

identical two sentence form remand order from the Supreme Court. Specifically,

the Supreme Court’s order states:

      Petition for writ of certiorari granted. Judgment vacated, and case
      remanded to the United States Court of Appeals for the Eleventh Circuit,
      for further consideration in light of United States v. Booker, 543 U.S.
      __, 125 S. Ct. 738, 160 L. Ed.2d 621 (2005).

Nunez v. United States, 125 S. Ct. 2253 (2005). Thus, we further now consider

Nunez’s sentence in light of Booker and conclude that Nunez abandoned any

Apprendi/Blakely/Booker claim by not timely raising a constitutional challenge to



                                            4
his sentence in his initial briefs in his two prior appeals. As our Pipkins, Sears,

and Dockery decisions indicate, we have consistently concluded that there is

nothing in the Supreme Court’s remand order that requires us to treat a case as

though the Booker issue was timely raised when the defendant fails to raise it in

on direct appeal. As we explained in Pipkins,

      We have a long-standing rule that we will not consider issues that were
      argued for the first time in a petition for rehearing, and we adhere to that
      rule today. Moreover, there is nothing in the Supreme Court’s remand
      order that requires us to treat this case as though the issue had been
      timely raised in this court. And, the Supreme Court made clear in
      Booker that we are to apply our “ordinary prudential doctrines” in
      considering these types of challenges to sentences. Our ordinary
      prudential doctrine requiring parties to raise all issues in their initial
      briefs precludes us from addressing the Defendants’ arguments asserted
      for the first time before this court in their Petitions for Rehearing en
      Banc.

Pipkins, 2005 WL 1421449, at *2.

      As pointed out in Pipkins, the Supreme Court emphasized that the fact that

Booker was to be applied to cases on direct review did not mean “that every

sentence gives rise to a Sixth Amendment violation [or] that every appeal will lead

to a new sentencing hearing.” Booker, 125 S. Ct. at 769. Indeed, the Supreme

Court directed courts to “apply ordinary prudential doctrines [including], for

example, whether the issue was raised below . . . .” Id.




                                           5
      We note that the Supreme Court has applied its own prudential rules to

foreclose the ability of defendants to raise Blakely claims. In Pasquantino v.

United States, 125 S. Ct. 1766, 1781 n.14 (2005), decided after Booker, the

petitioners argued “in a footnote that their sentences should be vacated in light of

Blakely . . . .” However, the petitioners “did not raise this claim before the Court

of Appeals or in their petition for certiorari.” Pasquantino, 125 S. Ct. at 1781

n.14. Although the petitioners failed to previously raise the issue, “[t]his omission

was no fault of the defendants, . . . as the petition in this case was filed and granted

well before the Court decided Blakely. Petitioners thus raised Blakely at the

earliest possible point: in their merits briefing.” Pasquantino, 125 S. Ct. at 1783

n.5 (Ginsburg, J., dissenting). Despite the fact that petitioners raised their Blakely

claim at the earliest possible moment after that decision was released, the Supreme

Court applied its prudential procedural rules and declined to address the issue.

Pasquantino, 125 S. Ct. at 1781 n.14.

      In summary, in the initial briefs in both of the prior appeals, Nunez asserted

no Apprendi/Blakely/Booker-based challenge to his sentence. Accordingly, we

reinstate our August 26, 2004 opinion and affirm Nunez’s sentence after our

reconsideration in light of Booker.

      OPINION REINSTATED; SENTENCE AFFIRMED.

                                           6
