                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                                No. 04-11086                ELEVENTH CIRCUIT
                                                                MAY 11, 2005
                            Non-Argument Calendar
                                                             THOMAS K. KAHN
                          ________________________
                                                                  CLERK

                      D.C. Docket No. 03-20907-CR-PCH

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellant,

      versus

VICTOR PADILLA,
a.k.a. Victor Manuel Padilla,
                                                   Defendant-Appellee.
                         __________________________

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

                                (May 11, 2005)

                     ON REMAND FROM THE
               SUPREME COURT OF THE UNITED STATES

Before BLACK, MARCUS and PRYOR, 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, 160 L. Ed. 2d 621 (2005). We previously

affirmed Appellant’s 46-month sentence, imposed after his plea of guilty, for

conspiracy to import 100 kilograms or more of marijuana, in violation of 21 U.S.C.

§§ 952(a), 960(b)(2). See United States v. Padilla, Case No. 04-11086 (11th Cir. Dec.

29, 2004) (unpublished). The Supreme Court vacated our prior decision and

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

      In his initial brief, Appellant argued that, because he was a hired employee and

did not have an ownership interest in the marijuana he attempted to import or the

vessel which he used in this smuggling attempt, the district court erred by denying his

request for a two-level reduction in offense level for playing a minor role in the

offense, pursuant to U.S.S.G. § 3B1.2.        Notably, he 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

                                          2
      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, 401

F.3d 1261 (11th Cir. 2005).

      In his initial brief in this case, Padilla asserted no Apprendi (or its progeny)

challenge to his sentence. Accordingly, we reinstate our previous opinion in this case

and affirm, once again, Padilla’s sentence after our reconsideration in light of Booker,

pursuant to the Supreme Court’s mandate.

      OPINION REINSTATED; SENTENCE AFFIRMED.




                                           3
