                                                          [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT              FILED
                        _____________________________
                                                    U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                                 No. 00-15847            September 27, 2005
                        _____________________________ THOMAS K. KAHN
                                                              CLERK
                       D. C. Docket No. 98-00019 CR-1-MMP

UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

      versus

KALYN NAGEL,

                                                Defendant-Appellant.

                        _____________________________

                                 No. 01-16356
                        _____________________________

                       D. C. Docket No. 98-00019 CR-1-MMP

UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

      versus

JUDITH GIGLIO,
a.k.a. Judie Giglio,

                                                Defendant-Appellant.
                         _____________________________

                                  No. 02-16832
                         _____________________________

                       D. C. Docket No. 98-00019 CR-1-9-MMP

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

      versus

KALYN NAGEL,
JUDITH GIGLIO,
a.k.a. Judie Giglio,

                                                  Defendants-Appellants.

                         _____________________________

                   Appeals from the United States District Court
                       for the Northern District of Florida
                      _____________________________

                               (September 27, 2005)

                ON REMAND FROM THE SUPREME COURT
                       OF THE UNITED STATES

Before EDMONDSON, Chief Judge, DUBINA and COX, Circuit Judges.

PER CURIAM:




                                        2
      A jury found Defendants Giglio and Nagel guilty of conspiracy to launder

money obtained through wire fraud. Nagel and Giglio appealed their convictions;

we affirmed. United States v. Nagel, No. 00-15847, 2004 WL 1578993 (11th Cir.

Jun. 30, 2004) (Table); United States v. Giglio, No. 01-16356, United States v.

Nagel, No. 00-15847, 2004 WL 1578994 (11th Cir. Jun. 30, 2004) (Table).

Defendants appealed our decision to the United States Supreme Court. The Court

vacated the judgments and remanded the cases to us in the light of United States v.

Booker, 125 S. Ct. 738 (2005). Giglio v. United States, 125 S. Ct. 1689 (2005);

Nagel v. United States, 125 S. Ct. 1052 (2005).

      Defendant Giglio raised no Booker/Blakely/Apprendi objection at trial or on

appeal. The Supreme Court’s remand does not make the issue -- which was

abandoned -- timely before us. United States v. Dockery, 401 F.3d 1261, 1263

(11th Cir. 2005). See United States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001)

(recognizing that the Supreme Court did not indicate this Court should ignore

“our well-established rule that issues and contentions not timely raised in the

briefs are deemed abandoned”).

      Defendant Nagel did raise a sentencing issue to the district court and on her

initial appeal. At the sentencing hearing before the district court, Nagel’s counsel

argued the evidence was insufficient to support a sentence enhancement for

                                          3
obstruction of justice. What was said cited no caselaw, nor did it raise a question

about the propriety of judicial fact-finding.1

       On appeal, Nagel raised three arguments about the obstruction of justice

enhancement: (1) the statements that the court considered to be perjury were not

material; (2) the district court did not make specific factual findings to support its

determination; and (3) Nagel’s statements were consistent with the evidence at

trial. We previously rejected the contentions, and they do not raise constitutional,

Booker/Blakely/Apprendi kind of objections. United States v. Dowling, 403 F.3d

1242, 1245 (11th Cir. 2005). See generally United States v. Martinez, 96 F.3d

473, 475 (11th Cir. 1996) (deciding that issue framing matters). Accordingly, we

again affirm the sentence and conviction.

       Even if we thought the appellate brief framed and raised a

Booker/Blakely/Apprendi issue, we would review it for plain error, because

Nagel’s counsel’s statement in the trial court did not raise the issue. United States

v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005); Dowling, 403 F.3d at 1245.

  1
   Nagel’s counsel said: “The record is going to simply reject very substantially everything that [the
prosecuting attorney] has said regarding my client saying something that somehow should increase
her responsibility by two points for obstruction of justice and not being truthful on the stand. As the
Court knows, in a case that involves the application of deliberate indifference or in a case of an
activity which in and of itself is not illegal, intent can be proven. And in this case apparently it was
accepted by the government that she should have known. Simply because she took the stand and
testifies on her own behalf does not mean that she wasn’t speaking the truth as she understands it to
be. Based on the record, the Court should disallow the two points.”

                                                   4
Under the plain error review, we decide whether the district court made (1) an

error; (2) that is plain; and (3) that affects substantial rights. Id. Nagel bears the

burden of demonstrating the three elements.

         Presuming without deciding the district court erred, we conclude that Nagel

cannot show that such an error affected her substantial rights. Unlike the

defendant in United States v. Shelton, 400 F.3d 1325, 1332-33 (11th Cir. 2005),

Nagel cannot show that a reasonable probability existed that “the district court

would have imposed a lesser sentence . . . if it had not felt bound by the Guidelines

. . . [and that] a reasonable probability that some sentence below the Guidelines

range would be permissible and reasonable in light of Booker and the [18 U.S.C.]

§ 3553(a) factors.” The transcript is void of those kinds of concerns by the district

court.

         In all matters, the district court’s order is again affirmed.

         AFFIRMED.




                                              5
