                                                                        [DO NOT PUBLISH]


                   IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT                          FILED
                                                                      U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                            MAY 5, 2005
                                        No. 03-11060
                                                                         THOMAS K. KAHN
                                                                              CLERK

                             D.C. Docket No. 02-00116-CR-CG

UNITED STATES OF AMERICA,

                                                                      Plaintiff-Appellee,

                                             versus

GERALD EUGENE BENNETT,
                                                                     Defendant-Appellant.



                       Appeal from the United States District Court
                          for the Southern District of Alabama


                                         (May 5, 2005)

                         ON REMAND FROM THE
                   SUPREME COURT OF THE UNITED STATES

Before MARCUS and WILSON, Circuit Judges, and DUPLANTIER*, District
Judge.


*Honorable Adrian G. Duplantier, United States District Judge for the Eastern District of
Louisiana, sitting by designation.
PER CURIAM:

      On direct appeal this court affirmed Eugene Bennett’s convictions and sentence.

United States v. Bennett, 368 F.3d 1343 (11th Cir. 2005). The Supreme Court vacated

that judgment, remanding the case “for further consideration in light of Booker v.

United States, 543 U.S.       (2005).”

      In his initial brief, Bennett urged that in sentencing him the district court erred

in the following respects:

             •     calculating the drug quantity, and resulting offense level, by
                    relying on the testimony of an unqualified expert witness and
                      determining that the methamphetamine involved in Bennett’s
                    dealing with Timothy Brown constituted relevant conduct under
                     U.S.S.G. § 1B1.3;
             •     enhancing the offense level by two levels for obstruction of justice
                     pursuant to U.S.C.G. §3C1.1;
             •     enhancing the offense level by three levels after determining that
                   there
                    were five or more participants in the offense conduct; and
             •     enhancing the offense level based upon the official status of
                   Deputy
                    Cuthkelvin.

Bennett did not raise any constitutional challenge to his sentence, nor did he assert

error premised 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. Counsel



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for Bennett untimely raised an issue pursuant to Blakely v. Washington, 542 U.S.

    , 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) in a motion to supplement his petition

for rehearing which was received by the Clerk’s Office on the same date that rehearing

was denied. Thereafter, counsel for Bennett filed a supplemental authority letter in

which, relying on the Seventh Circuit’s opinion in United States v. Booker, 375 F.3d

508 (7th Cir. 2004), he urged that Blakely “does apply to the Federal Sentencing

Guidelines, and that it was plain error for the district court to enhance Bennett’s

sentence. . . .” Those notifications were untimely and do not “cure” Bennett’s failure

to assert a constitutional challenge to his sentence in his initial brief. See United

States v. Njau, 386 F.3d 1039, 1042 (11th Cir. 2004).

      In United State v. Ardley, 242 F.3d 989 (11th Cir.), cert. denied,        U.S.

, 121 S.Ct. 2621,           L.Ed.2d          (2001), in addressing a remand from the

Supreme Court with instructions to reconsider the opinion in light of Apprendi, the

court noted:

               [n]othing 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 through
               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

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             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.”). That reasoning applies equally here, where there is an

untimely challenge based on United States v. Booker,         U.S.      , 125 S.Ct. 738,

160 L.Ed.2d 621 (2005). United States v. Dockery, 401 F.3d 1261, 1262 (11th Cir.

2005).

      Accordingly, we reinstate our previous opinion in this case and affirm, once

again, Bennett’s sentence after our reconsideration in light of Booker, pursuant to the

Supreme Court’s mandate.

      OPINION REINSTATED; SENTENCE AFFIRMED.




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