FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 11, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 03-14650

Non-Argument Calendar

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D.C. Docket No. 02-20867-CR-PCH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER LOPERA,

Defendant-Appellant.

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Appeal from the United States District Court for the

Southern District of Florida

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 (May 11. 2005)

ON REMAND FROM THE

SUPREME COURT OF THE UNITED STATES

Before BIRCH, DUBINA and BLACK, Circuit Judges.

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

Booker, 125 S. Ct. 738 (2005). We previously affirmed in part, and vacated and

remanded in part Lopera’s conviction. See United States v. Lopera, Case No. 03-

14650 (11th Cir. Jul. 8, 2004) (unpublished). The Supreme Court vacated our

prior decision and remanded the case to us for further consideration in light of

Booker.

On direct appeal, Lopera did not challenge his sentence and did not assert

error based on Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), or any other case

extending or applying the Apprendi principle. However, after the opinion in his

case was issued, Lopera sought rehearing based on Blakely v. Washington, 124 S.

Ct. 2531 (2004). We denied the petition for rehearing. 

In United States v. Dockery, 401 F.3d 1261, 1262–63 (11th Cir. 2005), after

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

Booker, we relied on our earlier case of United States v. Ardley, 242 F.3d 989

(11th Cir.), cert. denied, 121 S. Ct. 2621 (2001), which observed:

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

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

in the briefs are deemed abandoned. 

Ardley, 242 F.3d at 990 (citations omitted). Thus, because Dockery had not

asserted an Apprendi (or its progeny) challenge to his sentence, we reinstated our

previous opinion. Dockery, 401 F.3d at 1263.

In United States v. Levy, 379 F.3d 1241 (11th Cir. 2004), Levy sought to

raise a Blakely issue on petition for rehearing, although he had never made an

Apprendi-based argument in his initial brief. Id. at 1241–42. We held that Levy

waived his Blakely claim by not raising it in his initial brief on appeal. Id. at 1245. 

Because Lopera did not assert error based on Apprendi (or its progeny) in

his initial brief on appeal, we reinstate our previous opinion in this case and affirm

Lopera’s conviction and sentence after our reconsideration in light of Booker,

pursuant to the Supreme Court’s mandate. However, because the judgment

contains a clerical error in stating that Lopera was convicted of violating “8 U.S.C.

§ 1324(b)(1)(B)(I)” instead of “8 U.S.C. § 1324(b)(1)(B)(i),” we vacate and

remand with instructions for the district court to replace “(I)” with “(i).”

OPINION REINSTATED IN PART; AFFIRMED IN PART, AND

VACATED AND REMANDED IN PART.