                                                                      [DO NOT PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                                                             FILED
                                                                    U.S. COURT OF APPEALS
                                 ________________________             ELEVENTH CIRCUIT
                                                                          MAY 12, 2005
                                       No. 03-14338                    THOMAS K. KAHN
                                   Non-Argument Calendar                    CLERK
                                 ________________________

                             D. C. Docket No. 03-00015-CR-01-1

UNITED STATES OF AMERICA,

                                                                      Plaintiff-Appellee,

                                            versus

TYSON EUGENE MARSHEK,

                                                                      Defendant-Appellant.
                                 ________________________

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

                                       (May 12, 2005)

                        ON REMAND FROM THE
                  SUPREME COURT OF THE UNITED STATES


Before ANDERSON and BIRCH, Circuit Judges, and ROYAL*,District Judge.
________________________
    *Honorable C. Ashley Royal, United States District Judge for the Middle District of Georgia,
sitting by designation.
PER CURIAM:

      We previously affirmed the sentence in this case after oral argument. United

States v. Marshek, No. 03-14338 (11th Cir. Aug. 17, 2004). The Supreme Court has

vacated our prior judgment and remanded the case to us for further consideration in

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

reconsidered our decision pursuant to the Supreme Court’s instructions, we reinstate

our judgment affirming the sentence.

      When Marshek was before this court prior to the certiorari petition being filed,

he did not raise any issue based upon Booker, Blakely v. Washington, 542 U.S. ___,

124 S. Ct. 2531 (2004), or Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348

(2000).

      Following the well-established rule in this circuit, see United States v. Levy,

379 F.3d 1241, 1242 (11th Cir. 2004), reh'g en banc denied, 391 F.3d 1327 (11th Cir.

2004), issues that are not timely raised in the briefs are deemed abandoned. In United

States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001), we applied this rule to a case

remanded from the Supreme Court in light of Apprendi. Recently, we applied Ardley

to a post-Booker remand and found that the defendant had abandoned his Booker

claim because he failed to raise it at the district court or in his initial brief. United

States v. Dockery, __F.3d__, 2005 WL 487735 (11th Cir. Mar. 3, 2005).

                                           2
Our opinion affirming the sentence in this case is accordingly REINSTATED.




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