                                                     [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                  FILED
                      ________________________
                                                      U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                             No. 03-16578                   October 14, 2005
                         Non-Argument Calendar           THOMAS K. KAHN
                       ________________________                CLERK

                   D.C. Docket No. 02-60200-CR- UUB

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

     versus

VICTOR GARRY BAXTER,

                                                        Defendant-Appellant.

                       ________________________

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

                            (October 14, 2005)

                 ON REMAND FROM THE
     SUPREME COURT OF THE UNITED STATES OF AMERICA

Before TJOFLAT, ANDERSON 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 convictions and 360-month sentence, as well as the

imposition of a $10,000 fine, for distribution, in violation of 21 U.S.C. §

841(a)(1), (b)(1)(B), and possession with intent to distribute cocaine (powder), in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). See United States v. Baxter, Case

No. 02-16578 (11th Cir. Jan. 4, 2005) (unpublished).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 denial of his motion to

suppress, the sufficiency of the evidence to support his conviction, and the district

court’s imposition of a $10,000 fine. 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

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      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 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 extended the foregoing rule to preclude

untimely challenges based on Booker. See United States v. Dockery, 401 F.3d

1261 (11th Cir. 2005), cert. denied, No. 05-5714 (Oct. 11, 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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TJOFLAT, Circuit Judge, specially concurring:

      The court declines to consider appellant’s Booker claim on the merits

because appellant failed to present the claim in his initial brief on appeal. Binding

precedent, United States v. Ardley, and United States v. Dockery, which the court

properly cites, requires us to disregard the claim for that reason. I therefore concur

in the court’s judgment. Were we no bound by such precedent, I would, for the

reasons I have previously expressed, entertain appellant’s Booker claim on the

merits. See United States v. Higdon, 2005 U.S.App. LEXIS, at *17 (11th Cir. July

8, 2005).




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