[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 30, 2005
No. 03-11083
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-14049-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN HOWARD VANORDEN, JR.,
a.k.a. "Robotruc@Bellsouth.net",
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 30, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before TJOFLAT and MARCUS, Circuit Judges, and MUSGRAVE *, Judge.
PER CURIAM:
On November 4, 2002, John Howard Vanorden, Jr. pled guilty to one count
of receiving a visual depiction of a minor engaged in sexually explicit conduct in
violation of 18 U.S.C. § 2252(a)(2). The base offense level for this offense was
seventeen. U.S. Sentencing Guidelines Manual § 2G2.2(a) (2002). The district
court added two levels because the material involved depicted children under the
age of twelve, id. § 2G2.2(b)(1), five levels because the offense involved
“[d]istribution for the receipt, or expectation of receipt, a thing of value, but not for
pecuniary gain,” id. § 2G2.2(b)(2)(B), four levels because the offense involved
masochistic conduct, id. § 2G2.2(b)(3), and two levels because the offense
involved a computer, id. § 2G2.2(b)(5). The court subtracted three levels based on
Vanorden’s acceptance of responsibility. Id. § 3E1.1. These adjustments resulted
in a total offense level of twenty-seven, which yielded a guideline sentencing range
of 70-87 months imprisonment when coupled with Vanorden’s criminal history
category of I. On appeal, Vanorden raised only one issue: whether the district
court had erred in enhancing his sentence under § 2G2.2(b)(2)(B), supra, because
that guideline did not apply to his conduct. He did not raise a constitutional
*
Honorable Kenton R. Musgrave, Judge, United States Court of International Trade ,
sitting by designation.
2
challenge to his sentence based on the Sixth Amendment right to a trial by jury,
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),
Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), or
United States v. Booker, 543 U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).1
We rejected Vanorden’s lone claim and affirmed his sentence in an unpublished
opinion. United States v. Vanorden, 99 Fed. Appx. 875 (11th Cir. Apr. 2, 2004).
Vanorden thereafter filed a petition for a writ of certiorari. On January 24,
2005, the Supreme Court granted Vanorden’s petition, vacated our decision, and
remanded the case “for further consideration in light of [Booker].” Vanorden v.
United States, 543 U.S. __, 125 S. Ct. 1040, 160 L. Ed. 2d 1026 (2005). Under our
recent decision in United States v. Dockery, 401 F.3d 1261 (11th Cir. 2005),
however, “further consideration in light of Booker” does not actually require any
consideration of the merits of Vanorden’s Booker claim:
Nothing in the [Booker] 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
1
This omission is certainly understandable in that neither Blakely nor Booker had been
decided, and then-controlling circuit precedent held that the Sixth Amendment right to a trial by
jury, as explicated in Apprendi, “ha[d] no application to, or effect on, . . . Sentencing Guidelines
calculations, when . . . the ultimate sentence imposed does not exceed the prescribed statutory
maximum penalty,” United States v. Sanchez, 269 F.3d 1250, 1288 (11th Cir. 2001) (en banc).
3
Court’s remand order, which is cast in the usual language, requiring
that we treat the case as though the [Booker] issue had been timely
raised in this Court. In the absence of any requirement to the contrary
in either [Booker] or in the order remanding this case to us, we apply
our well-established rule that issues and contentions not timely raised
in the briefs are deemed abandoned.
Id. at 1262-63 (quoting United States v. Ardley, 242 F.3d 989, 990, reh’g en banc
denied, 273 F.3d 991 (11th Cir. 2001)). 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.” Accordingly, we
reinstate our previous opinion and AFFIRM Vanorden’s sentence.
4
TJOFLAT, Circuit Judge, specially concurring:
I concur in the judgment of the panel because we are bound by Dockery.
See, e.g., United States v. Machado, 804 F.2d 1537, 1543 (11th Cir. 1986) (“Only
a decision by this court sitting en banc or by the United States Supreme Court can
overrule a prior panel decision.”). If we were writing on a clean slate, I would
consider the merits of Vanorden’s Booker claim. As the panel notes, Dockery
concludes that nothing in either Booker itself or in the standard Supreme Court
order remanding a case “for further consideration in light of [Booker]” “requires or
suggests that we are obligated to consider” a Booker claim that was not raised in
the defendant’s initial brief on appeal. Under Dockery, such a claim is “deemed
abandoned” even if the defendant’s initial brief was filed before Blakely and
Booker were decided, at which time this and every other circuit had squarely
rejected identical arguments. Dockery, 401 F.3d at 1262-63 (quoting Ardley, 242
F.3d at 990).
This is a strange rule we have: in a case in which the Supreme Court has
vacated our decision for “for further consideration in light of [Booker]” precisely
because we did not have the benefit of Booker when we rendered our first decision,
we decline to actually consider the Booker issue on the ground that it was not
raised when we issued that first decision. As I have explained elsewhere, it is also
5
a very bad rule, as it is not only inconsistent with Supreme Court precedent and the
law of every other circuit, but also encourages defendant-appellants to raise
frivolous claims that are squarely foreclosed by circuit and Supreme Court
precedent on the off chance that an unanticipated decision will make them
suddenly viable. See United States v. Levy, 391 F.3d 1327, 1335-51 (11th Cir.
2004) (Tjoflat, J., dissenting from the denial of rehearing en banc); Ardley, 273
F.3d at 995-1007 (Tjoflat, J., dissenting from the denial of rehearing en banc).
Nonetheless, it is a strange, bad rule that is the law of the circuit, so I concur rather
than dissent. I write separately to explain briefly (1) why it is particularly
troubling that this court continues to refuse to address Booker claims in “GVR”
cases (i.e., cases in which the Supreme Court has granted the defendant’s petition
for certiorari, vacated the prior judgment of this court, and remanded for further
consideration in light of Booker) and (2) the practical consequences of our rule.
To begin with, I cannot agree with Dockery’s determination that “[n]othing
in the [Booker] 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.” Dockery, 401
F.3d 1262 (quoting Ardley, 242 F.3d at 990). In Booker, the Supreme Court
clearly instructed that “we must apply [Booker’s] holdings—both the Sixth
Amendment holding and [its] remedial interpretation of the Sentencing Act—to all
6
cases on direct review.” Booker, 543 U.S. at __, 125 S. Ct. at 769 (emphasis
added). In other words, Dockery finds nothing in the Supreme Court’s specific
directive that we must apply Booker to all cases on direct review that even suggests
that we should address Booker claims in this subset of cases on direct review (i.e.,
cases in which the defendant’s initial brief did not contain a Booker-type claim for
the imminently sensible reason that such a claim had been rejected by each and
every circuit). Other circuits have, to say the least, read Booker’s instruction
differently. E.g., United States v. Ameline, __ F.3d __, 2005 WL 1291977, at *11
(9th Cir. June 1, 2005) (en banc) (“Booker explicitly stated that its holding applies
to all cases pending on direct appeal. Booker, 125 S. Ct. at 769. Even where the
briefs filed by the parties do not raise a Booker objection, we conclude that the
issue may be raised and should be considered.”); United States v. Washington, 398
F.3d 306, 312 n.7 (4th Cir. 2005) (“Although appellate contentions not raised in an
opening brief are normally deemed to have been waived, the Booker principles
apply in this proceeding because the Court specifically mandated that we ‘must
apply [Booker] . . . to all cases on direct review.’” (citation omitted) (quoting
Booker, 543 U.S. at __, 125 S. Ct. at 769)).
To be sure, the Booker Court did go on to say that it “expect[ed] reviewing
courts to apply ordinary prudential doctrines, determining, for example, whether
7
the issue was raised below and whether it fails the ‘plain-error’ test.” 543 U.S. at
__, 125 S. Ct. at 769. And the Supreme Court has also said that the general
principle that a decision concerning the conduct of criminal prosecutions must be
applied to all cases still pending on direct review is “subject, of course, to
established principles of waiver, harmless error, and the like.” Shea v. Louisiana,
470 U.S. 51, 58 n.4, 105 S. Ct. 1065, 1069 n.4, 84 L. Ed. 2d 38 (1985).1 These
qualifications of the general principle do not, however, implicate this case. First,
the rule followed in Dockery is not an “ordinary prudential doctrine”; in fact, it is a
quite extraordinary rule in that we invented it only four years ago and it has not
been followed by any other circuit. See Levy, 391 F.3d at 1343-48 (Tjoflat, J.,
dissenting from the denial of rehearing en banc). Second, the fact that Vanorden’s
claim is “subject . . . to established principles of waiver” is inapposite because
Vanorden has done nothing that can plausibly be construed as a “waiver.” As the
Supreme Court has explained, “[w]aiver is different from forfeiture. Whereas
forfeiture is the failure to make the timely assertion of a right, waiver is the
‘intentional relinquishment or abandonment of a known right.’” United States v.
Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508 (1993)
1
Shea was decided two years before Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708,
93 L. Ed. 2d 649 (1987), which was the first Supreme Court case to hold that, without exception,
“a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases,
state or federal, pending on direct review or not yet final.” Id. at 328, 107 U.S. at 716.
8
(quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed.
1461 (1938)). Thus, while Vanorden did forfeit his Booker claim by failing to
“timely assert[]” it—which means that review in his case should be for plain error
only—it is clear that he has not “waived” it. At the time the supposed waiver took
place—when Vanorden’s lawyer filed his initial brief in April 2003—Blakely and
Booker had not yet been decided,2 and this circuit and every other had squarely
rejected Blakely/Booker-type arguments. It, therefore, it makes no sense to say
that Vanorden “intentional[ly] relinquish[ed]” a “known” Sixth Amendment right.3
2
Vanorden’s opening brief was filed on April 17, 2003, about three weeks before a
petition for certiorari was filed in Blakely, see Petition for a Writ of Certiorari, Blakely (No. 02-
1632), and about six months before the Court granted the petition, Blakely v. Washington, 540
U.S. 965, 124 S. Ct. 429, 157 L. Ed. 2d 309 (2003).
3
Several other circuits have expressly agreed that such an omission is not a “waiver.”
E.g., United States v. Vazquez-Rivera, 407 F.3d 476, 487-88 (1st Cir. 2005); United States v.
Macedo, 406 F.3d 778, 789 (7th Cir. 2005); United States v. McDaniel, 398 F.3d 540, 546-
47(6th Cir. 2005).
In my dissent in Levy, I tried to explain the difference between “waiver” and “forfeiture”
and its significance in this context: a new constitutional rule concerning criminal prosecutions
applies to all cases then pending on direct review unless the defendant has waived (and not just
forfeited) the claim, see supra note 1 and accompanying text; and, moreover, Federal Rule of
Criminal Procedure 52(b) extends plain-error review to all issues unless they have been waived
(and not just forfeited) by the defendant, see Olano, 507 U.S. at 732-34, 113 S. Ct. at 1777. The
waiver/forfeiture distinction is thus crucial. See generally Levy, 391 F.3d at 1339 n.7, 1341-43
(Tjoflat, J., dissenting from the denial of rehearing en banc). My discussion of this point drew
the following response from the concurrence:
The dissent . . . attempts to make a distinction between waiver, forfeiture,
and abandonment. However, the dissent misunderstands the issue. The issue is
not whether Levy’s failure to raise his Blakely-type issue necessarily constitutes
waiver, forfeiture, or abandonment. Rather, the issue is whether this Court will
apply its well-established procedural rules; that is, this Court will not consider
claims raised in a petition for rehearing that were never raised, in any form, in a
defendant’s initial brief on direct appeal.
The dissent attempts to confuse the issue by discussing the difference
9
In sum, because the rule that bars Vanorden’s Booker claim is not an “ordinary
prudential doctrine,” and because Vanorden has done nothing to “waive” his claim,
Booker does, in fact, obligate us to consider it. Dockery’s conclusion to the
contrary is erroneous and should be corrected by this court sitting en banc or by the
Supreme Court.
I also cannot agree with the conclusion reached in Dockery that nothing in
the Supreme Court’s standard GVR order requires us to consider claims such as
Vanorden’s. The precise significance of these orders has always been something
of a mystery,4 but the Supreme Court’s discussion of its GVR power in Stutson v.
between waiver, forfeiture, and abandonment. The issue is not whether this Court
has the power to consider issues not raised in the initial brief; of course it does.
Rather, this Court, out of concerns for judicial economy and finality, has elected
to adopt and apply procedural rules universally and equally. This is not only fair
and consistent, but a logical extension of the Supreme Court’s decision in Shea.
Id. at 1334-35 (Hull, J., concurring in the denial of rehearing en banc).
My discussion was not intended to “confuse” anyone. I understand, of course, that the
issues-not-briefed-are-waived rule does not turn on the waiver/forfeiture distinction; rather, its
application turns simply on whether the issue was in the brief. The point I was endeavoring to
make is that because Griffith, Shea, and Olano do turn on this distinction, we cannot go merrily
along “adopt[ing] and apply[ing] procedural rules” in a way that conflicts with those decisions.
In the end, the essence of the concurrence’s position was that our rule (a) does not require a
knowing and intelligent waiver and (b) is “but a logical extension of the Supreme Court’s
decision in Shea.” To its credit, the concurrence did concede that its position was an “extension”
of Supreme Court precedent. But the problem remains that this extension is neither “logical” nor
justifiable because “[w]aiver is different from forfeiture,” Olano, 507 U.S. at 733, 113 S. Ct. at
1777; contrary to the concurrence’s position, the terms are not freely interchangeable.
4
See generally Arthur D. Hellman, The Supreme Court’s Second Thoughts: Remands for
Reconsideration and Denials of Review in Cases Held for Plenary Decisions, 11 Hastings Const.
L.Q. 5 (1983); see also Henry v. City of Rock Hill, 376 U.S. 776, 776-77, 84 S. Ct. 1042, 1043,
12 L. Ed. 2d 79 (1964) (stating that a GVR is appropriate when the Court is “not certain that the
case was free from all obstacles to reversal on an intervening precedent” but the intervening
10
United States, 516 U.S. 193, 116 S. Ct. 600, 133 L. Ed. 2d 571 (1996), nonetheless
implies that we should not disregard claims like the one presented here. In Stutson,
after the defendant was convicted of cocaine possession and sentenced to 292
months in prison, his attorney filed his notice of appeal in the district court, rather
than in the court of appeals (as required by Federal Rule of Appellate Procedure
4(b)), and one day late. The district court held that this mistake barred any appeal
because it did not constitute “excusable neglect” under Rule 4(b). Shortly before
the district court’s decision, the Supreme Court had held that comparable attorney
negligence could establish “excusable neglect” under the bankruptcy rules;
however, that opinion was not cited in the briefs to the district court or in the
district court’s decision. On appeal in this court, the parties disputed the
applicability of the bankruptcy decision in the criminal context. We affirmed
without oral argument or written opinion. By the time the case reached the
Supreme Court, however, all six circuits to address the issue had held that the
“excusable neglect” standard articulated in the bankruptcy case also applied in the
criminal context, and the Government had even changed its position to agree with
those circuits. See id. at 194-95, 116 S. Ct. at 601-02. The Court concluded that
decision is “sufficiently analogous and, perhaps, decisive to compel re-examination of the
case”); Robert L. Stern et al., Supreme Court Practice 319 (8th ed. 2002) (stating that when the
Supreme Court issues a GVR, “the lower court is being told simply to reconsider the entire case
in light of the intervening precedent—which may or may not compel a different result”).
11
“this exceptional combination of circumstances present[ed] ample justification for
a GVR order”—even though the GVR was “for further consideration in light of”
an opinion that was addressed in the briefs filed below, and even though the
Government had not confessed error, but merely disavowed its previous litigating
position. Id. at 195-96, 116 S. Ct. at 602.
Stutson’s holding concerning the scope of the Supreme Court’s GVR power
is, of course, not relevant here. But some of its discussion of the purpose of those
orders is instructive. The Court first emphasized,
[I]t is not insignificant that this is a criminal case. When a litigant is
subject to the continuing coercive power of the Government in the
form of imprisonment, our legal traditions reflect a certain solicitude
for his rights, to which the important public interests in judicial
efficiency and finality must occasionally be accommodated. We have
previously refused to allow technicalities that caused no prejudice to
the prosecution to preclude a remand . . . “in the interests of justice.”
And procedural accommodations to prisoners are a familiar aspect of
our jurisprudence. . . .
Judicial efficiency and finality are important values, and our
GVR power should not be exercised for “[m]ere convenience.” “But
dry formalism should not sterilize procedural resources which
Congress has made available to the federal courts.”
Id. at 196-97, 116 S. Ct. at 603 (citations omitted) (quoting Wood v. Georgia, 450
U.S. 261, 265, n.5, 101 S. Ct. 1097, 1100, n.5, 67 L. Ed. 2d 220 (1981), and
Adams v. United States ex rel. McCann, 317 U.S. 269, 274, 63 S. Ct. 236, 239, 87
L. Ed. 268 (1942)). These concerns apply with equal force here. In view of the
12
fact that Vanorden is “subject to the continuing coercive power of the Government
in the form of imprisonment,” it is not too much to ask that we make the minor
“procedural accommodations” necessary to determine whether any portion of his
sentence of imprisonment violates the Constitution. The Supreme Court has
consistently identified the end of a defendant’s direct appeal as the point at which
systemic interests in finality surpass the defendant’s interest in benefitting from a
new rule of constitutional law.5 By refusing to consider claims such as
Vanorden’s, we have said essentially that the Supreme Court struck the wrong
balance and that the defendant’s opening brief on appeal should be the tipping
point. Because our reevaluation is based on nothing more than “convenience” and
“dry formalism,” it is inconsistent with the important and “familiar aspect[s]” of
“our legal traditions” Stutson emphasizes.
The Stutson Court also explained some of the reasons for the GVR order it
issued: “a GVR order guarantees to the petitioner full and fair consideration of his
rights in light of all pertinent considerations” and also “promotes fairness and
respects the dignity of the Court of Appeals by enabling it to consider potentially
5
E.g., Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075, 103 L. Ed. 2d 334
(1989) (“Unless they fall within an exception to the general rule, new constitutional rules of
criminal procedure will not be applicable to those cases which have become final before the new
rules are announced.”); Griffith, 479 U.S. at 328, 107 S. Ct. at 716 (“a new rule for the conduct
of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on
direct review or not yet final”).
13
relevant decisions and arguments that were not previously before it.” Stutson, 516
U.S. at 197, 116 S. Ct. at 603. Three aspects of this description of the GVR order
are instructive here: First, to “guarantee[] . . . full and fair consideration” of all of
a person’s “rights” implies more than to permit review of those issues that were
previously raised in the court of appeals. Second, a GVR order does not
“promote[] fairness” if the court of appeals refuses to give the case “further
consideration in light of” the very decision that triggered the GVR, as the
defendant is then no better off than he was before the GVR. Third, if one purpose
of a GVR order is for the court of appeals “to consider . . . arguments that were not
previously before it,” then we thwart that purpose by failing to consider Booker
issues in cases like this one. Thus, although Stutson is not clearly controlling, its
rationale does suggest that GVR orders are more significant than this court has
been willing to admit.
Lastly, it must be clear that our Ardley-Levy 6-Dockery line of cases is
especially pernicious because it constitutes an absolute, across-the-board bar to
claims such as the one we refuse to consider here. These claims are now barred on
both direct appeal and collateral review, and they also cannot form the basis of an
6
The Supreme Court has vacated the judgment in United States v. Levy, 374 F.3d 1023
(11th Cir. 2004), and remanded for further consideration in light of Booker. United States v.
Levy, 543 U.S. __, __ S. Ct. __, 2005 WL 540692 (June 6, 2005) (No. 04-8942).
14
ineffective assistance of counsel claim, see Levy, 391 F.3d at 1334 n.3 (Hull, J.,
concurring in the denial of rehearing en banc); Ardley, 273 F.3d at 993-94 (Carnes,
J., concurring in the denial of rehearing en banc).7 The upshot of our rule,
therefore, is that a Supreme Court decision that we are directed to apply
retroactively to all cases still pending on direct review, e.g., Booker, 543 U.S. at
__, 125 S. Ct. at 769; Griffith, 479 U.S. at 328, 107 S. Ct. at 716, will not apply at
all to cases on direct review like this one.8
7
If on direct review, an appellate court improperly refuses to apply Booker retroactively,
“then a court conducting collateral review of such a conviction should rectify the error and apply
[Booker] retroactively.” Shea, 470 U.S. at 58 n.4, 105 S. Ct. at 1069 n.4. Thus, on collateral
review, a defendant such as Vanorden will have a substantial argument that Booker should apply
retroactively. I have no doubt that most such defendants will make this argument, that the
district courts in this circuit will have to adjudicate their claims, and that we will at least have to
deal with them in the form of applications for certificates of appealability. The same is true with
respect to ineffective assistance claims based on counsel’s failure to raise a Booker-type claim in
the defendant’s opening brief. Although these claims are unlikely to succeed, they will surely be
litigated, particularly given that we have characterized counsel’s omission as a “waiver” of the
possibility of a substantially lower sentence. Thus, I am not saying that these claims will not be
raised on collateral review; rather, I am simply observing here that it is all but certain that they
will fail because (1) the district court and this court on appeal will be bound to conclude that the
refusal to apply Booker on direct appeal was entirely proper, and (2) six of the twelve judges on
this court joined an opinion concurring in the denial of rehearing en banc in either Ardley or
Levy that stated that this sort of “waiver” will not constitute ineffective assistance of counsel.
8
In contrast, in Stutson, supra, it was at least clear that the defendant was left with an
ineffective assistance claim even if the Supreme Court did not GVR his direct appeal. See
generally Roe v. Flores-Ortega, 528 U.S. 470, 480, 484, 120 S. Ct. 1029, 1036, 1038, 145 L. Ed.
2d 985 (2000) (holding that counsel’s failure to file a timely notice of appeal without first
consulting the defendant constitutes ineffective assistance if (1) “there is reason to think . . . that
a rational defendant would want to appeal” or the defendant himself “reasonably demonstrated to
counsel that he was interested in appealing” and (2) there is a reasonable probability that the
defendant would have appealed but for counsel’s failure to consult him). Nonetheless, the
Supreme Court emphasized that “convenience” and “formalism” should not stand in the way of
considering his claim on direct appeal.
15
I continue to disagree with the rule we apply in this case for all the reasons
given in my dissents in Levy and Ardley. As explained here, this rule is
particularly problematic when applied to cases on remand from the Supreme Court.
Hopefully, this court sitting en banc, or the Supreme Court, will soon correct this
practice. However, because a panel of this court is not free to do so, I concur in the
judgment.
16