[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 23, 2004
THOMAS K. KAHN
________________ CLERK
No. 03-16001
_______________
D.C. Docket No. 02-00070-CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY WADE HEMBREE,
Defendant-Appellant.
_________________
Appeal from the United States District Court for the
Northern District of Florida
_________________
(AUGUST 23, 2004)
Before DUBINA, BLACK and PRYOR, Circuit Judges.
BY THE COURT:
On July 23, 2004, this court denied Appellant’s motion for leave to file a
supplemental brief pursuant to Blakely v. Washington, ___ U.S. ___, 124 S. Ct.
2531 (2004). Appellant now files a motion seeking to either file a substitute
principal brief, or seeks this court’s reconsideration of its July 23, 2004, Order.
Appellant is attempting to do indirectly what he cannot do directly – raise a
Blakely issue when it was not raised in his initial brief.
This court’s precedent establishes that a party may not raise through a
supplemental brief an issue not previously raised in his principal brief. See U.S. v.
Curtis, ___ F.3d ___, No. 02-16224 (11th Cir. August 10, 2004); U.S. v. Levy, ___
F.3d ___, No. 01-17133 (11th Cir. August 3, 2004); U.S. v. Ford, 270 F.3d 1346,
1347 (11th Cir. 2001); U.S. v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001); U.S. v.
Nealy, 232 F.3d 825, 830 (11th Cir. 2000). Therefore, to the extent that Appellant
seeks reconsideration of the July 23, 2004, Order, his motion is DENIED.
To the extent that Appellant’s motion seeks to file a substitute principal
brief for the purpose of raising a Blakely issue, we hold that such Blakely motions
to file a substitute or amended principal brief should be construed as motions to
file a supplemental brief and should be denied. Such Blakely motions must be
construed for what they are. Otherwise, this court would be permitting Appellant,
through a motion for a substituted or amended principal brief, to circumvent
improperly our above precedent and to do indirectly what Appellant cannot do
directly. Nor will we sua sponte order the filing of substituted or amended
principal briefs. To do so is impermissible as it too would circumvent improperly
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the above precedent of this court that forbids raising new issues by supplemental
briefs. Accordingly, Appellant’s motion to file a substitute principal brief is also
DENIED.
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