                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            JULY 26, 2005
                             No. 03-14318
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                               CLERK
                       ________________________

               D. C. Docket No. 02-00117-CR-FTM-29-DNF

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                  versus

JIMMIE LEE BYRD,

                                                        Defendant-Appellant.
                       ________________________

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

                               (July 26, 2005)

                   ON REMAND FROM THE
             SUPREME COURT OF THE UNITED STATES


Before BLACK, PRYOR and FAY, 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 Defendant Jimmie Lee Byrd’s appeal, with a limited remand to correct a

clerical error in the judgment of conviction. See United States v. Byrd, No. 03-

14318 (Dec. 22, 2004). The Supreme Court vacated the judgment and remanded

the case to us following its decision in Booker. See United States v. Byrd, 125

S.Ct. 2535 (May 31, 2005).

      Jimmie Lee Byrd directly appealed his life sentence for conspiracy to import

five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 952, 963,

960(b)(1), 851 (“Count 1”); conspiracy to possess with intent to distribute five

kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1),

841(b)(1)(B), 851 (“Count 2”); importation of five kilograms or more of cocaine,

in violation of §§ 952(a), 960(b)(1)(B), 851 (“Count 3”); and possession with

intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§

841(a)(1), 841(b)(1)(A), 851; 18 U.S.C. § 2 (“Count 4”). The jury returned a guilty

verdict on all counts.

      In regard to the substantive conviction, Byrd argued that the district court

erred in denying: (1) his motion to suppress evidence seized from a vessel; and (2)

                                         2
his motion for a judgment of acquittal on Counts 2 and 4 of his indictment. We

affirmed Byrd’s conviction. Byrd further argued, in relation to his sentence, that

the district court erred in: (1) enhancing his offense level by two levels, pursuant

to U.S.S.G. § 2D1.1(b)(2)(B), based on his serving as a captain of a vessel used in

the conspiracy; (2) enhancing his sentence, pursuant to 21 U.S.C. §§ 851, for

Byrd’s previous criminal convictions; and (3) refusing to grant a downward

departure, pursuant to U.S.S.G. § 5K2.0, based on Byrd’s “act of

humanitarianism.” We also affirmed Byrd’s sentence, but remanded the case to the

district court because the judgment of conviction erroneously reflected that Byrd’s

convictions in Counts 2 and 4 involved five grams of cocaine, instead of five

kilograms. After we issued our opinion, Byrd sought a writ of certiorari to the

United States Supreme Court based upon its recent decision in Booker.

      In his initial brief, Byrd did not assert error in his sentence based on

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

or its progeny. Only in the reply brief did Byrd rely on Blakely v. Washington, 542

U.S. ___, 124 S.Ct. 2531, 159 L.Ed. 403 (2004), arguing that the district court

violated his Fifth Amendment rights by increasing his offense level based on facts




                                          3
not charged in the indictment.1

       This Court recently addressed a similar case which had been remanded in

light of Booker. See United States v. Dockery, 401 F.3d 1261, 1262-63 (11th Cir.

2005). In Dockery, we observed that the appellant in that case did not raise a

constitutional challenge or an argument based on Apprendi or Apprendi

principles. See Dockery at 1262. We further noted how we handled cases which

were remanded with instructions to reconsider in light of Apprendi:

       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.

Id. at 1262-63 (quoting United States v. Ardley, 242 F.3d 989, 990 (11th Cir.),

cert. denied, 533 U.S. 962, 121 S.Ct. 2621, 150 L.Ed.2d 774 (2001).

       Because he made no arguments in his initial brief raising Booker/Apprendi

issues, Byrd has abandoned those issues. Accordingly, we reinstate our previous

opinion in this case and affirm, once again, the Defendant’s conviction and


       1
         Prior to Booker, this Court has held that claims not raised on appeal, including Blakely
claims, are deemed waived. United States v. Hembree, 381 F.3d 1109, 1110 (11th Cir. 2004);
United States v. Curtis, 380 F.3d 1308, 1310-11 (11th Cir. 2004); United States v. Levy, 379
F.3d 1241, 1242-44 (11th Cir. 2004).

                                                4
sentence after our reconsideration in light of Booker, pursuant to the Supreme

Court’s mandate. We further remand this case to the district court for the limited

purpose of correcting the clerical error in the judgment of conviction.

      OPINION REINSTATED. CONVICTIONS AND SENTENCES
      AFFIRMED; LIMITED REMAND TO CORRECT CLERICAL
      ERROR IN JUDGMENT OF CONVICTION.




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