                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            JUNE 21, 2005
                             No. 04-11084
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

                    D. C. Docket No. 03-80082-CR-JIC

UNITED STATES OF AMERICA,
                                                        Plaintiff-Appellee,

                                  versus

GADIER F. NAZARIO,
a.k.a. Bimbo,
                                                        Defendant-Appellant.

                       ________________________

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

                             (June 21, 2005)

                   ON REMAND FROM THE
             SUPREME COURT OF THE UNITED STATES


Before BIRCH, BARKETT and FAY, 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

dismissed Defendant Gadier Nazario’s appeal. See United States v. Nazario, No.

04-11084 (Nov. 5, 2004). The Supreme Court vacated the judgment and remanded

the case to us following its decision in Booker. See United States v. Nazario, __

S.Ct.__, 2005 WL 871068 (May 16, 2005).

      On September 10, 2003, a grand jury indicted Nazario for multiple counts in

connection with a heroin distribution ring. Nazario pled guilty to Count I,

conspiring to possess with intent to distribute at least 1,000 grams of heroin.

Nazario further agreed to forfeit $40,000, and waived his statutory right of appeal.

In return, the Government agreed to dismiss all remaining counts while reserving

the right to inform the court of all pertinent facts, recommend a punishment, and

the right to appeal the sentence.

      The probation office prepared a Presentence Investigation Report, which

prompted the Government to recommend that Nazario receive a four-level

leadership enhancement, pursuant to U.S.S.G. § 3B1.1. At the sentencing hearing,

the district court sentenced Nazario to 151 months’ imprisonment, which included

a three-level enhancement for Nazario’s role as a manager or supervisor in the

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conspiracy. The district court also sentenced Nazario to 60 months of supervised

release, and the $100.00 mandatory assessment.

       Nazario appeals on the ground that the Government’s retention of its right

to appeal his sentence effectively invalidated the appeal waiver he agreed to via

the plea agreement. Thus, Nazario argues that this Court should consider his

argument on appeal that the trial court erred in assessing a leadership enhancement

against Nazario.

       In his initial brief, Nazario did not assert error in his sentence based on

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),

or its progeny. Only in the reply brief did Nazario rely on Blakely v. Washington,

542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed. 403 (2004), arguing that the district court

violated his Fifth Amendment rights by increasing his offense level based on facts

not charged in the indictment.1

       Finding that the Defendant knowingly and voluntarily entered the plea

agreement and that he understood the ramifications of his appeal waiver, this

Court dismissed Nazario’s appeal. Nazario then petitioned the United States



       1
         Prior to Booker, this Court has held that claims not raised on appeal, including Blakely
claims, are deemed waived. United States v. Hembree, 381 F.3d 1109, 1110 (11th Cir. 2004);
United States v. Curtis, 380 F.3d 1308, 1310-11 (11th Cir. 2004); United States v. Levy, 379
F.3d 1241, 1242-44 (11th Cir. 2004).

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Supreme Court for a writ of certiorari, and was allowed to submit a supplemental

brief challenging his sentence.

      This Court recently addressed a similar case which had been remanded in

light of Booker. See United States v. Dockery, 401 F.3d 1261, 1262-63 (11th Cir.

2005). In Dockery, we observed that the appellant in that case did not raise a

constitutional challenge or an argument based on Apprendi or Apprendi

principles. See Dockery at 1262. We further noted how we handled cases which

were remanded with instructions to reconsider in light of Apprendi:

      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 in the briefs are deemed abandoned.

Id. at 1262-63 (quoting United States v. Ardley, 242 F.3d 989, 990 (11th Cir.),

cert. denied, 533 U.S. 962, 121 S.Ct. 2621, 150 L.Ed.2d 774 (2001).

      Because he made no arguments in his initial brief raising Booker/Apprendi

issues, and because we find his waiver of appeal to be valid, Nazario has

abandoned those issues. Accordingly, we reinstate our previous opinion in this

case and dismiss, once again, the Defendant’s appeal after our reconsideration in



                                         4
light of Booker, pursuant to the Supreme Court’s mandate.

OPINION REINSTATED.




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