                                                                   [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT

                       -------------------------------------------          FILED
                                    No. 03-13803                   U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                              Non-Argument Calendar                      March 17, 2006
                      -------------------------------------------- THOMAS K. KAHN
                                                                           CLERK
                     D.C. Docket No. 02-60069-CR-FAM

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                        versus

VINCENT LEE FERGUSON,

                                                       Defendant-Appellant.


            ----------------------------------------------------------------
                 Appeal from the United States District Court
                      for the Southern District of Florida
            ----------------------------------------------------------------
                                 (March 17, 2006)

                  ON REMAND FROM THE
            SUPREME COURT OF THE UNITED STATES


Before EDMONDSON, Chief Judge, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:
      This case is before the Court for consideration in the light of United States

v. Booker, 125 S.Ct. 738 (2005). We previously affirmed Appellant’s convictions

and sentences for cocaine importation, 21 U.S.C. § 952(a), and possession with

intent to distribute cocaine, 21 U.S.C. § 841(a)(1). See United States v. Ferguson,

No. 03-13803 (11th Cir. Jan. 10, 2004) (unpublished). The Supreme Court

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

the light of Booker.

      In his initial brief on direct appeal, Appellant challenged his convictions,

but not his sentences. And Appellant did not assert error based on Apprendi v.

New Jersey, 120 S.Ct. 2348 (2000), or any case extending or applying the

Apprendi principle. Appellant first mentioned a Booker-based sentencing claim in

his petition for rehearing, which we denied. 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 the light of

Apprendi, we declined to review the Apprendi issue because it was not presented

in the appellant’s initial brief. 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”). Recently,

we applied Ardley to a post-Booker remand and determined that the defendant had

                                           2
abandoned his Booker claim because he failed to raise it at the district court or in

his initial brief. See United States v. Dockery, 401 F.3d 1261, 1262-63 (11th

Cir.), cert. denied, 126 S.Ct. 442 (2005).

      Appellant did not assert error based on Apprendi (or its progeny) in his

initial brief on appeal. We, thus, reinstate our previous opinion in this case and

affirm Appellant’s convictions and sentences after our reconsideration in the light

of Booker, pursuant to the Supreme Court’s mandate.

      OPINION REINSTATED; CONVICTIONS AND SENTENCES

AFFIRMED.




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