                                                      [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________
                                                             FILED
                                                        U.S. COURT OF
                               No. 03-16160                APPEALS
                          Non-Argument Calendar       ELEVENTH CIRCUIT
                       ________________________          JUNE 13, 2005
                                                       THOMAS K. KAHN
                   D. C. Docket No. 03-00019-CR-4-SPM       CLERK


UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                   versus

JEREMY GRAHAM,
                                                      Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Northern District of Florida
                       _________________________
                               (June 13, 2005)

                    ON REMAND FROM THE
              SUPREME COURT OF THE UNITED STATES

Before BLACK, BARKETT and COX, Circuit Judges.

PER CURIAM:

     Jeremy Graham was convicted of possession with intent to distribute

methylenedioxymethamphetamine, better known as “Ecstasy,” in violation of 21
U.S.C. § 841(a), and possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g). The district court sentenced Graham to serve concurrent terms of

295 months on each count, and we affirmed his convictions and sentences. The

Supreme Court vacated our judgment in this case and remanded it to us for further

consideration in light of United States v. Booker, ___U.S.___, 125 S. Ct. 738 (2005).

See United States v. Graham, No. 03-16160 (11th Cir. July 15, 2004) vacated, 125

S. Ct. 1098 (2005). We directed the parties to file supplemental briefs addressing (1)

where, when, and how the Booker issue was first raised; (2) whether the Booker issue

was timely raised; and (3) how the Booker decision applies to this case. Because we

conclude that the Booker issue was not raised in a timely manner, we reinstate our

previous opinion affirming Graham’s convictions and sentences.

      Graham first challenged the constitutionality of his sentence in a petition for

rehearing. In that petition, Graham argued he was entitled to be resentenced by the

district court. Graham based his argument on the Supreme Court’s decision in

Blakely v. Washington, ___U.S.___, 124 S. Ct. 2531 (2004), which Graham suggested

invalidated the Sentencing Guidelines.

      We have repeatedly held that we will not consider issues raised for the first

time in a petition for rehearing. See, e.g., United States v. Levy, 379 F.3d 1241, 1242

(11th Cir.), reh’g en banc denied, 391 F.3d 1327 (11th Cir. 2004). Graham concedes

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that our precedent appears to “bar review entirely.” (Appellant’s Supplemental Letter

Brief, p. 2). Nevertheless, Graham urges us to reconsider our precedent, and accept

his Blakely/Booker argument as timely so that we may reach the merits of his

argument.

      Under our prior panel rule, we are bound by the holdings of earlier panels

unless they are clearly overruled en banc or by the Supreme Court. See Swann v. S.

Health Partners, Inc., 388 F.3d 834, 837 (11th Cir. 2004). And, we have held that

we will not consider issues argued for the first time in a petition for rehearing. Levy,

379 F.3d at 1242. By arguing that our precedent on this issue is wrongly decided,

Graham has preserved his contentions for further appellate review, both in this court

and in the Supreme Court. But as a panel we are bound by our precedent. Thus, we

conclude that Graham’s constitutional attack on his sentences, first presented in his

petition for rehearing, is untimely.

      Our previous decision in this case, United States v. Graham, No. 03-16160

(11th Cir. 2004), affirming Graham’s convictions and sentences, is REINSTATED.




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