                                                              [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                No. 04-11370                  SEPTEMBER 20, 2005
                            Non-Argument Calendar              THOMAS K. KAHN
                          ________________________                 CLERK


                       D. C. Docket No. 03-20834-CR-SH

UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                      versus

SILVIO A. DE LA OSSA,
                                                             Defendant-Appellant.
                          ________________________

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

                             (September 20, 2005)

                    ON REMAND FROM THE
              SUPREME COURT OF THE UNITED STATES



Before TJOFLAT, BIRCH and MARCUS, Circuit Judges.

PER CURIAM:

     This case is before us for consideration in light of United States v. Booker,
543 U.S.    , 125 S. Ct. 738 (2005). De La Ossa v. United States,          U.S.   , 125 S.

Ct. 1426 (2005). We previously affirmed De La Ossa’s conviction and sentence.

United States v. De La Ossa, No. 04-11370 (11th Cir. Oct. 26, 2004). The

Supreme Court vacated our prior decision and remanded the case to us for further

consideration in light of Booker.

       In his initial brief on appeal, De La Ossa had argued that the district court

erred by denying him a minor-role reduction. He did not raise a Sixth Amendment

objection or any other constitutional or legal objection based on the issues

addressed by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), or

any other case extending or applying the Apprendi principle, in his initial brief or

in any other manner before this court.1

       In United States v. Dockery, 401 F.3d 1261 (11th Cir. 2005) (per curiam),

we addressed a similar situation: a remand from the Supreme Court with

instructions to consider our opinion in light of Booker in an appeal in which the

appellant did not raise either a constitutional or Apprendi challenge to his sentence.

Id. at 1262. We applied “our well-established rule that issues . . . not timely raised

in the briefs are deemed abandoned,” reinstated our previous opinion, and affirmed



       1
         By extension, an issue raised under Apprendi raises an issue pursuant to Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004) and Booker. See United States v. Grant, 397
F.3d 1330, 1331 (11th Cir. 2005).

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Dockery’s sentence. Id. at 1262-63 (citation omitted). Such is the procedure that

we will follow in this case because De La Ossa failed to raise an Apprendi

challenge to his sentence in his initial brief.2

       We reinstate our previous opinion and, upon reconsideration in light of

Booker, pursuant to the Supreme Court’s remand, affirm De La Ossa’s sentence.




       2
          We have held that the application this prudential rule, in which we treat issues not raised
in a party’s initial brief as abandoned, to foreclose an untimely Booker claim “does not result in
manifest injustice.” United States v. Levy, F.3d. , (11th Cir. Jul 12, 2005).

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TJOFLAT, Circuit Judge, specially concurring:

      Binding precedent beginning with United States v. Ardley, 242 F.3d 989,

reh’g en banc denied, 273 F.3d 991 (11th Cir. 2001), and including United States

v. Dockery, which the court relies on, bars us from considering appellant’s Booker

claim because he did not raise it in his initial brief. I therefore concur in the court’s

judgment. As I have stated before, though, most recently in United States v.

Higdon, 2005 U.S.App. LEXIS 15663, at *17 (11th Cir. July 8, 2005) (Tjoflat, J.,

dissenting from the denial or rehearing en banc), Ardley and its progeny were

wrongly decided. Thus, were we writing on a clean slate, I would entertain

appellant’s Booker claim on the merits.




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