FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 22, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 03-15611

Non-Argument Calendar

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D. C. Docket No. 03-00055-CR-3-LAC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BENNIE F. McCOMBS, II,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

(September 22, 2005)

ON REMAND FROM THE 

SUPREME COURT OF THE UNITED STATES

Before TJOFLAT, ANDERSON and MARCUS, Circuit Judges.

PER CURIAM:
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This case is before the Court for consideration in light of United States v.

Booker, __U.S. __, 125 S.Ct. 738 (2005). We previously affirmed. See United States

v. McCombs, No. 0315611 (11th Cir. July 30, 2005) (unpublished). The Supreme

Court vacated our prior decision and remanded the case to us forfurther consideration

in light of Booker. Appellant challenges his 87-month sentence, imposed pursuant

to his guilty plea to possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g). In his initial brief, McCombs argued that the district court plainly

erred by violating Rule 11 of the Federal Rules of Criminal Procedure because the

court failed to advise him during his plea colloquy of (1) the mandatory $100 special

monetary assessment, (2) the right to counsel at sentencing, and (3) the right to testify

and present evidence at trial. 

Appellant did not raise a constitutional challenge to his sentence, nor did he

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 his initial brief. McCombs first mentioned a constitutional sentencing error in his

petition for rehearing en banc. In United States v. Ardley, 242 F.3d 989 (11th Cir.),

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

Supreme Court's remand with instructions to reconsider our opinion in light of

Apprendi, we declined to review the Apprendi issue because it was not presented in
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the appellant's initial brief. 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."). Recently, we applied

Ardley to a post-Booker remand and found that the defendant had abandoned his

Booker claim because he failed to raise it at the district court or in his initial brief.

United States v. Dockery, __F.3d__, 2005 WL 487735 (11th Cir. Mar. 3, 2005). Our

opinion affirming sentence in this case is accordingly REINSTATED.

TJOFLAT, Circuit Judge, specially concurring:

United States v. Ardley and its progeny require that we treat appellant as

having waived/abandoned his Booker claim because his lawyer failed to raise it in his

initial brief on appeal. I therefore concur in the court’s judgment. Were we writing

on a clean slate, I would, for the reasons I have previously expressed, entertain

appellant’s claim. See United States v. Higdon, 2005 U.S.App. LEXIS, at *17 (11th

Cir. July 8, 2005) (Tjoflat, J., dissenting from the denial of rehearing en banc).