ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

We previously affirmed the sentence in this case after oral argument. United States v. Marshek, 116 Fed.Appx. 248 (11th Cir. 2004). The Supreme Court has vacated our prior judgment and remanded the case to us for further consideration in light of United States v. Booker, 543 U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Having reconsidered our decision pursuant to the Supreme Court’s instructions, we reinstate our judgment affirming the sentence.

When Marshek was before this court prior to the certiorari petition being filed, he did not raise any issue based upon Booker, Blakely v. Washington, 542 U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), or Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Following the well-established rule in this circuit, see United States v. Levy, 379 F.3d 1241, 1242 (11th Cir. 2004), reh’g en banc denied, 391 F.3d 1327 (11th Cir. 2004), issues that are not timely raised in the briefs are deemed abandoned. In United States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001), we applied this rule to a case remanded from the Supreme Court in light of Apprendi. 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, 401 F.3d 1261 (11th Cir. 2005).

Our opinion affirming the sentence in this case is accordingly REINSTATED.