United States v. Christopher Pierre Hicks

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
FILED
No. 03-10051 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_____________________________ February 7, 2006
THOMAS K. KAHN
D. C. Docket No. 02-00006-CR-01-4 CLERK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

CHRISTOPHER PIERRE HICKS,
SUZZETTE MARIE CALLOWAY,

Defendants-Appellants.

_________________________________________

Appeals from the United States District Court
for the Northern District of Georgia
_________________________________________

(February 7, 2006)

ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES

Before EDMONDSON, Chief Judge, DUBINA and COX, Circuit Judges.

PER CURIAM:
A jury convicted Defendants Hicks and Calloway of federal drug crimes

related to their manufacture of methamphetamine. We affirmed the conviction.

United States v. Hicks, No. 03-10051, 2004 WL 1347019 at *1 (11th Cir. Jun. 2,

2004) (Table). Both Hicks and Calloway appealed our decision to the United

States Supreme Court. The Court vacated our previous judgment and remanded

the matter to us for further consideration in the light of United States v. Booker,

125 S.Ct. 738 (2005). We now affirm the conviction and sentence and reinstate

our prior panel opinion.

Hicks and Calloway both concede that they raised no

Booker/Blakely/Apprendi issue in their initial appeal.1 We follow the well-

established prudential rule that “issues and contentions not timely raised in the

briefs are deemed abandoned.” United States v. Ardley, 242 F.3d 989, 990 (11th

Cir. 2001). Accordingly, Booker/Blakely/Apprendi claims are not timely before

this Court. United States v. Levy, 416 F.3d 1273 (11th Cir. 2005) (concluding that

Supreme Court’s general remand does not “preclude this Court from applying its

prudential rules in a uniform and consistent manner”).

1
Calloway first raised a Blakely claim in her petition for a writ of certiorari to the Supreme Court.
Hicks failed to raise a cognizable Booker/Blakely/Apprendi claim until his supplemental letter brief
submitted to this Court in these remand proceedings.

2
Defendants alternatively argue that the timeliness issue is moot because the

Supreme Court “has specifically requested that this Court consider Booker even

though [the Defendants] never raised a Blakely/Booker claim below.” First, it is

important to note that nothing in the Supreme Court’s remand order requires us to

treat this case as though the Booker issue has been timely raised in this Court.

Second, Defendants’ argument is contrary to precedent. As we concluded in Levy,

“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.” 416

F.3d at 1279-80. Applying our ordinary prudential rules to this case, we conclude

that defendants abandoned their Booker/Blakely/Apprendi claims by failing to

raise the claims in their initial briefs.

We have considered this case in the light of Booker and our case law, and

we affirm Defendants’ convictions and sentences and reinstate our prior panel

opinion.

AFFIRMED.