United States v. Clyde J. Dixon

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ July 27, 2005
THOMAS K. KAHN
No. 03-16331 CLERK
Non-Argument Calendar
________________________

D. C. Docket No. 02-00640-CR-1-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

CLYDE J. DIXON,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(July 27, 2005)

ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:
 This case is now before the Court on remand from the United States

Supreme Court for consideration of Dixon’s sentence in light of United States v.

Booker, 543 U.S. __, 125 S. Ct. 738 (2005). After review, we reinstate our

previous opinion and affirm Dixon’s sentence.

I. BACKGROUND

After a jury trial, Dixon was convicted of: (1) conspiracy to make false

statements to purchase firearms, in violation of 18 U.S.C. § 371 (Count One); (2)

four counts of making false statements to purchase firearms, in violation of 18

U.S.C. §§ 922(a)(6), 924(a)(2), and 2 (Counts Two through Five); and (3) four

counts of being a convicted felon in possession of a firearm, in violation of 18

U.S.C. § 922(g) (Counts Six through Nine).

On direct appeal to this Court, Dixon challenged the district court’s

admission of evidence at trial related to his prior felony conviction, his child-

support warrant, and the nature of his relationship with a child alleged to be his

son. We affirmed Dixon’s convictions. United States v. Dixon, No. 03-16331, at

12 (11th Cir. Dec. 1, 2004).

Dixon did not raise any challenge to his sentence in his initial brief or in his

reply brief on direct appeal, much less any error based on Apprendi v. New Jersey,

530 U.S. 466, 120 S. Ct. 2348 (2000), or any other case extending Apprendi.

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Instead, after filing his initial and reply briefs, Dixon filed a “motion to

supplement issues on appeal,” in which Dixon sought to raise a new challenge to

his sentence under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).

We denied Dixon’s motion based on this circuit’s well-established rule that issues

not raised in a party’s initial brief are deemed waived. See, e.g., United States v.

Levy, 379 F.3d 1241, 1244-45 (11th Cir. 2004), judgment vacated by, 125 S. Ct.

2542 (2005), judgment reinstated by, United States v. Levy, – F.3d –, 2005 WL

1620719, at *6 (11th Cir. July 12, 2005); United States v. Ardley, 242 F.3d 989,

991 (11th Cir.), cert. denied, 533 U.S. 962, 121 S. Ct. 2621 (2001); United States

v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000), cert. denied, 534 U.S. 1023, 122 S.

Ct. 552 (2001).

Dixon filed a petition for certiorari in the United States Supreme Court. On

June 6, 2005, the Supreme Court granted certiorari, vacated our December 1, 2004

judgment, and remanded the case for reconsideration in light of Booker. Dixon v.

United States, 125 S. Ct. 2542 (2005).

As discussed above, Dixon did not challenge his sentence or raise any

Apprendi/Blakely/Booker issues in his initial brief or reply brief to this Court.

Although he did attempt to raise the issue in a motion to supplement issues on

appeal, we denied that motion. Under our circuit’s precedent, Dixon’s failure to

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raise those issues in his initial brief on direct appeal bars him from doing so now.

See United States v. Levy, – F.3d –, 2005 WL 1620719, at *5 (11th Cir. July 12,

2005) (stating that “Booker itself recognized that retroactivity is subject to

ordinary prudential rules, and thus nothing in Booker undermines or affects our

prudential rules; if anything, Booker contemplates that they should be applied in

Booker-remand cases”); United States v. Vanorden, – F.3d –, 2005 WL 1531151,

at *1 (11th Cir. June 30, 2005) (“Because Vanorden did not challenge his sentence

on Sixth Amendment-Apprendi-Blakely-Booker grounds in his first trip through

this circuit, this argument is ‘deemed abandoned.’”); United States v. Pipkins, –

F.3d – , 2005 WL 1421449, at *1 (11th Cir. June 20, 2005) (“The well-established

law in our circuit requires that issues be raised in the parties’ initial brief.”);

United States v. Sears, – F.3d –, 2005 WL 1334892, at *1 (11th Cir. June 8, 2005)

(stating in a Booker-remand case that “[t]he Appellant’s failure to raise the

[Booker] issue in his initial brief bars him from doing so now”); United States v.

Dockery, 401 F.3d 1261, 1262-63 (11th Cir. 2005) (declining to consider on

remand Booker issue not raised in appellant’s initial brief); Ardley, 242 F.3d at

990 (stating after a remand from the Supreme Court that “we apply our well-

established rule that issues and contentions not timely raised in the briefs [prior to

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Supreme Court remand] are deemed abandoned” and declining to consider any

Apprendi error after remand).

Thus, after our reconsideration in light of Booker, we reinstate our

December 1, 2004 opinion and affirm Dixon’s sentence.

OPINION REINSTATED; SENTENCE AFFIRMED.

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