#### UNITED STATES of America, Plaintiff-Appellee, v. Silvio A. DE LA OSSA, Defendant-Appellant.

No. 04-11370

Non-Argument Calendar.

D.C. Docket No. 03-20834-CR-SH.

United States Court of Appeals, Eleventh Circuit.

Sept. 20, 2005.

Timothy Cone, Federal Public Defender’s Office, Fort Lauderdale, FL, Kathleen *777M. Williams, Krista Halla, Miami, FL, for Defendant-Appellant.

Carol E. Herman, Anne R. Schultz, Jonathan D. Colan, U.S. Attorney’s Office, Miami, FL, for Plaintiff-Appellee.

Before TJOFLAT, BIRCH and MARCUS, Circuit Judges.

TJOFLAT, Circuit Judge, specially concurring.

PER CURIAM.

This case is before us for consideration in light of *United States v. Booker,*548 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). *De La Ossa v. United States,*— U.S. -, 125 S.Ct. 1426, 161 L.Ed.2d 184 (2005). We previously affirmed De La Ossa’s conviction and sentence. *United States v. De La Ossa,*124 Fed.Appx. 642 (11th Cir.2004). The Supreme Court vacated our prior decision and remanded the case to us for further consideration in light of *Booker.*

In his initial brief on appeal, De La Ossa had argued that the district court erred by denying him a minor-role reduction. He did not raise a Sixth Amendment objection or any other constitutional or legal objection based on the issues addressed by *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 *Ap-prendi*principle, in his initial brief or in any other manner before this court.1

In *United States v. Dockery,*401 F.3d 1261 (11th Cir.2005) (per curiam), we addressed a similar situation: a remand from the Supreme Court with instructions to consider our opinion in light of *Booker*in an appeal in which the appellant did not raise either a constitutional or *Apprendi*challenge to his sentence. *Id.*at 1262. We applied “our well-established rule that issues ... not timely raised in the briefs are deemed abandoned,” reinstated our previous opinion, and affirmed Dockery’s sentence. *Id.*at 1262-63 (citation omitted). Such is the procedure that we will follow in this case because De La Ossa failed to raise an *Apprendi*challenge to his sentence in his initial brief.2

We reinstate our previous opinion and, upon reconsideration in light of *Booker,*pursuant to the Supreme Court’s remand, affirm De La Ossa’s sentence.

TJOFLAT, Circuit Judge.

Binding precedent beginning with *United States v. Ardley,*242 F.3d 989, *reh’g en banc denied,*273 F.3d 991 (11th Cir.2001), and including *United States v. Dockery,*which the court relies on, bars us from considering appellant’s *Booker*claim because he did not raise it in his initial brief. I therefore concur in the court’s judgment. As I have stated before, though, most recently in *United States v. Higdon,*2005 WL 1744939, 2005 U.S.App. LEXIS 15663, at *17 (11th Cir. July 8, 2005) (Tjoflat, J., dissenting from the denial or rehearing en banc), *Ardley*and its progeny were wrongly decided. Thus, were we writing on a clean slate, I would entertain appellant’s *Booker*claim on the merits.

1

. By extension, an issue raised under *Apprendi*raises an issue pursuant to *Blakely v. Washington,*542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and *Booker. See United States v. Grant,*397 F.3d 1330, 1331 (11th Cir.2005).

2

. We have held that the application this prudential rule, in which we treat issues not raised in a party’s initial brief as abandoned, to foreclose an untimely *Booker*claim “does not result in manifest injustice.” *United States v. Levy,*416 F.3d. 1273 (11th Cir.2005).