                                                       [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                                June 9, 2005
                               No. 04-10567
                                                           THOMAS K. KAHN
                           Non-Argument Calendar               CLERK
                         ________________________

                   D.C. Docket No. 02-00551-CR-ODE-1-1

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

     versus

JESSIE LEE SMITH,

                                                           Defendant-Appellant.

                         ________________________

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

                                (June 9, 2005)

                    ON REMAND FROM THE
              SUPREME COURT OF THE UNITED STATES

Before BLACK, BARKETT and MARCUS, 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 Appellant’s conviction and 262-month sentence for possession of a

firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e). See

United States v. Smith, Case No. 04-10567 (11th Cir. Oct. 12, 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(unpublished).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 challenged the sufficiency of the evidence to

support his conviction and argued that his armed-career-criminal sentence violated

the Ex Post Facto Clause and constituted cruel and unusual punishment. Notably,

Appellant did not 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 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

                                           2
      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, Appellant asserted no

such Apprendi (or its progeny) challenge to his sentence.          Accordingly, we

reinstate our previous opinion in this case and affirm, once again, Appellant’s

conviction and sentence after our reconsideration in light of Booker, pursuant to

the Supreme Court’s mandate.

      OPINION REINSTATED; SENTENCE AFFIRMED.




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