[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 01-17133 July 12, 2005
________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 99-08125-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAPHAEL R. LEVY
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(July 12, 2005)
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before ANDERSON, HULL and PRYOR, Circuit Judges.
PER CURIAM:
This case is before this Court for the third time. We previously affirmed
Levy’s sentences in United States v. Levy, 374 F.3d 1023 (11th Cir. 2004), and
denied Levy’s petition for rehearing in United States v. Levy, 379 F.3d 1241 (11th
Cir. 2004).1 On June 6, 2005, the Supreme Court vacated our judgment and
remanded Levy’s case to us for further consideration in light of United States v.
Booker, 125 S. Ct. 738 (2005). See Levy v. United States, – S.Ct. –, 2005 WL
540692 (U.S. June 6, 2005).
Having now considered Levy’s case in light of Booker, we affirm Levy’s
sentences not only for the reasons stated in our prior opinions but also for those
explained below.
I. BACKGROUND
After this Court affirmed Levy’s sentences in United States v. Levy, 374
F.3d 1023 (11th Cir. 2004), the Supreme Court decided Blakely v. Washington,
124 S. Ct. 2531 (2004), which extended the constitutional rule announced in
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), to the Washington
State Sentencing Guidelines. As we all are aware, the Supreme Court again
extended Apprendi to the United States Sentencing Guidelines in Booker.
After Blakely, but before Booker, Levy filed a petition for rehearing in this
1
On December 3, 2004, this Court also denied Levy’s petition for en banc rehearing.
United States v. Levy, 391 F.3d 1327 (2004).
2
Court asserting, for the first time, that he had a right to a jury trial regarding his
federal sentencing enhancements. In his petition for rehearing, Levy conceded
that at no time prior to his petition for rehearing – not in the district court and not
in his briefs on appeal – did he raise any argument regarding the constitutionality
of the sentencing guidelines or any right to a jury trial on his sentencing
enhancements or any arguments grounded in Apprendi .
On August 3, 2004, this Court denied Levy’s petition for rehearing based on
this Court’s long-standing prudential rule of declining to entertain issues not
raised in an appellant’s initial brief on appeal but raised for the first time in a
petition for rehearing. See, e.g., Levy, 379 F.3d at 1242-45; United States v.
Ardley, 273 F.3d 991, 991-95 (11th Cir. 2001) (Carnes, J., concurring in the denial
of rehearing en banc) (collecting cases); United States v. Nealy, 232 F.3d 825,
830-31 (11th Cir. 2000).2
Levy then filed a petition for certiorari in the Supreme Court. The Supreme
Court granted certiorari, vacated our judgment, and remanded Levy’s case for
consideration in light of Booker, stating as follows:
2
Subsequently, this Court has applied this prudential rule in other cases where defendants
untimely raised Blakely, now Booker, claims. See, e.g., United States v. Pipkins, – F.3d –, 2005
WL 1421449, at *2 (11th Cir. June 20, 2005); United States v. Sears, –F.3d –, 2005 WL 1334892,
at *1 (11th Cir. June 8, 2005); United States v. Verbitskaya, 406 F.3d 1324, 1339-40 (11th Cir.
2005); United States v. Day, 405 F.3d 1293, 1294 n.1 (11th Cir. 2005); United States v. Dockery,
401 F.3d 1261, 1262-63 (11th Cir. 2005).
3
Motion of petitioner for leave to proceed in forma pauperis and
petition for writ of certiorari granted. Judgment vacated and case
remanded to the United States Court of Appeals for the Eleventh
Circuit for further consideration in light of United States v. Booker,
543 U.S. __ (2005).
Levy v. United States, – S. Ct. –, 2005 WL 540692 (U.S. June 6, 2005). Before
considering Levy’s case in light of Booker, we first explain our prudential rule
that issues not raised in a party’s initial brief are deemed abandoned and generally
will not be considered by this Court. We then consider Levy’s case in light of
Booker, explain why under Booker our established prudential rule still applies,
and thus why under Booker defendant Levy is not entitled to a new sentencing.
II. THIS COURT’S PRUDENTIAL RULE
In Nealy, this Court summarized our prudential rule of declining to consider
issues not timely raised in a party’s initial brief, as follows:
Parties must submit all issues on appeal in their initial briefs. When new
authority arises after a brief is filed, this circuit permits parties to submit
supplemental authority on “intervening decisions or new developments”
regarding issues already properly raised in the initial briefs. Also,
parties can seek permission of the court to file supplemental briefs on
this new authority. But parties cannot properly raise new issues at
supplemental briefing, even if the issues arise based on the intervening
decisions or new developments cited in the supplemental authority.
Nealy, 232 F.3d at 830 (internal citations omitted). This Court’s prudential rule is
well established, and thus we repeatedly have declined to consider issues raised
4
for the first time in a petition for rehearing. See, e.g., United States v. Martinez,
96 F.3d 473, 475 (11th Cir. 1996); Scott v. Singletary, 38 F.3d 1547, 1552 n.7 (11th
Cir. 1994); United States v. Fiallo-Jacome, 874 F.2d 1479, 1481 (11th Cir. 1989);
Dunkins v. Thigpen, 854 F.2d 394, 399 n.9 (11th Cir. 1988); Holley v. Seminole
County Sch. Dist., 763 F.2d 399, 400-01 (11th Cir. 1985).3
To allow a new issue to be raised in a petition for rehearing circumvents
Federal Rule of Appellate Procedure 28(a)(5), which requires that an appellant’s
initial brief must contain “a statement of the issues presented for review.”4
3
In addition, before a decision on the merits of a direct appeal, this Court repeatedly has
denied motions to file supplemental briefs that seek to raise new issues not covered in an
appellant’s initial brief on appeal. See, e.g., Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322
(11th Cir. 2001); United States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001); United States v.
Nealy, 232 F.3d 825, 830-31 (11th Cir. 2000); McGinnis v. Ingram Equip. Co., 918 F.2d 1491,
1495-97 (11th Cir. 1990) (en banc); see also Fed. Sav. And Loan Ins. Corp. v. Haralson, 813 F.2d
370, 373 n.3 (11th Cir. 1987).
As for reply briefs, this Court also declines to consider issues raised for the first time in
an appellant’s reply brief. See, e.g., KMS Rest. Corp. v. Wendy’s Int’l, Inc., 361 F.3d 1321,
1328 n.4 (11th Cir. 2004) (quoting Tallahassee Mem’l Reg’l Med. Ctr. v. Bowen, 815 F.2d 1435,
1446 n.16 (11th Cir. 1987)); United States v. Whitesell, 314 F.3d 1251 1256 (11th Cir. 2002);
United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir. 1999); United States v. Martinez, 83 F.3d
371, 377 n.6 (11th Cir. 1996); Jackson v. United States, 976 F.2d 679, 680 n.1 (11th Cir. 1992);
United States v. Oakley, 744 F.2d 1553, 1556 (11th Cir. 1984); United States v. Benz, 740 F.2d
903, 916 (11th Cir. 1984).
4
In Nealy, this Court noted that “[p]arties must submit all issues on appeal in their initial
briefs.” 232 F.3d at 830 (citing Fed. R. App. P. 28(a)(5)). The Nealy Court explained that
supplemental briefs will be authorized, pursuant to 11th Cir. R. 28-1, I.O.P.5, only when
intervening decisions or new developments arise after the moving party’s brief has been filed and
only when that new authority relates to an issue or issues already properly raised in the party’s
initial brief. Id. The Court expressly concluded that “parties cannot properly raise new issues at
supplemental briefing, even if the [new] issues arise based on the intervening decisions or new
developments cited in the supplemental authority.” Id. The new indictment issue we refused to
5
Further, the rule requiring that issues be raised in opening briefs “serves valuable
purposes, as do all of the procedural default rules, which is why we regularly
apply them. See generally Presnell v. Kemp, 835 F.2d 1567, 1573-74 (11th
Cir.1988).” Ardley, 273 F.3d at 991 (Carnes, J., concurring in the denial of
rehearing en banc).5 Two of those valuable purposes are judicial economy and
finality. Indeed, both purposes are implicated in this case as Levy concedes that
he did not raise any constitutional challenges to the sentencing guidelines or his
sentence or any Apprendi-type argument until after this Court had already held
oral argument and issued a published opinion affirming his sentences.
Accordingly, based on our prudential rule, this Court denied Levy’s petition
for rehearing, based on his failure to raise any Apprendi-type issue in his initial
brief on appeal. Levy, 379 F.3d at 1245.
III. CONSIDERATION IN LIGHT OF BOOKER
Because of the Supreme Court remand, we now further consider Levy’s
sentences in light of Booker. We recognize that in Booker, the Supreme Court
instructed courts to “apply today’s holdings – both the Sixth Amendment holding
hear in Nealy was Apprendi-based. Id.
5
Importantly, this rule applies with equal force, regardless of whether it is the
government, criminal defendant, or any other party to litigation who has failed to raise an issue in
their opening brief.
6
and our remedial interpretation of the Sentencing Act – to all cases on direct
review.” Booker, 125 S. Ct. at 769. However, the Booker Court itself emphasized
that even though Booker was to be applied to cases on direct review it did not
mean “that every sentence gives rise to a Sixth Amendment violation [or] that
every appeal will lead to a new sentencing hearing.” Id. In fact, the Supreme
Court in Booker also directed courts to “apply ordinary prudential doctrines
[including], for example, whether the issue was raised below . . . .” Id.
Moreover, this principle recognized in Booker – that retroactivity is subject
to ordinary prudential doctrines – is also explicitly recognized in two other
Supreme Court cases. See Shea v. Louisiana, 470 U.S. 51, 58 n.4, 105 S. Ct.
1065, 1069 n.4 (1985); Pasquantino v. United States, 125 S. Ct. 1766, 1781 n.14
(2005).
For example, in Shea v. Louisiana, the Supreme Court concluded that “if a
case was pending on direct review at the time Edwards [v. Arizona, 451 U.S. 477,
101 S. Ct. 1880 (1981)] was decided, the appellate court must give retroactive
effect to Edwards, subject, of course, to established principles of waiver, harmless
error, and the like.” Shea, 470 U.S. at 58 n.4, 105 S. Ct. at 1069 n.4. According to
Shea, courts of appeal must subject the retroactive effect of new cases to
established prudential rules. Id. As noted above, this Court’s prudential rule that
7
issues not raised in a party’s initial brief will not be considered is certainly well-
established. Thus, as dictated in Shea, the retroactive effect of Booker is subject
to our established prudential rules.
Further, in Pasquantino v. United States, the Supreme Court applied its own
prudential rules to foreclose the ability of defendants to raise untimely Blakely
claims. In Pasquantino v. United States, issued after Booker, the petitioners
argued “in a footnote that their sentences should be vacated in light of Blakely . . .
.” Pasquantino, 125 S. Ct. at 1781 n.14. However, “Petitioners did not raise this
claim before the Court of Appeals or in their petition for certiorari.” Id.
Although the petitioners failed to previously raise the issue, the dissent
emphasized that “[t]his omission was no fault of the defendants, . . . as the petition
in this case was filed and granted well before the Court decided Blakely.
Petitioners thus raised Blakely at the earliest possible point: in their merits
briefing.” Pasquantino, 125 S. Ct. at 1783 n.5 (Ginsburg, J., dissenting). Despite
the fact that the petitioners raised their Blakely claim at the earliest possible
moment after that decision was released, the Supreme Court applied its prudential
procedural rules and declined to address the issue. Pasquantino, 125 S. Ct. at 1781
n.14.
It seems relatively obvious that if the Supreme Court may apply its
8
prudential rules to foreclose a defendant’s untimely Blakely, now Booker, claim,
there is no reason why this Court should be powerless to apply its prudential rule
to foreclose defendant Levy’s untimely Blakely, now Booker, claim.
We also point out why Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708
(1987), is fully consistent with our established prudential rule. In Griffith, the
Supreme Court concluded that “a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases . . . pending on direct review
or not yet final . . . .” Id. at 328, 107 S. Ct. at 716. However, Griffith addressed a
situation in which the defendant timely raised the error in issue in both the district
court and the court of appeals. As we have stated, “[t]he Griffith holding . . .
applies only to defendants who preserved their objections throughout the trial and
appeals process.” Verbitskaya, 406 F.3d at 1340 n.18 (citing Griffith, 479 U.S. at
316-20, 107 S. Ct. at 709-11).6
Thus, there are two distinct and independent rules: (1) retroactivity; and (2)
this Court’s prudential rule that issues not raised in the opening brief are
6
The Griffith Court did not require that a dissimilarly situated defendant – one who did
not preserve his objection below or on appeal – would necessarily benefit from the new
constitutional rule. Instead, the Griffith holding is necessary to “treat[] similarly situated
defendants the same.” Griffith, 479 U.S. at 323, 107 S. Ct. at 713. Parties who fail to raise
timely claims of error are not similarly situated to those who properly preserved their claims.
After all, that is the very basis of plain-error review. Likewise, those parties that timely raise
issues in their initial appellate briefs are not similarly situated to those who fail to timely raise
issues in their initial appellate brief.
9
abandoned. Although each rule plays an equally important role in the orderly
administration of justice, they answer different questions. As explained by Judge
Carnes in Ardley,
[r]etroactivity doctrine answers the question of which cases a new
decision applies to, assuming that the issue involving that new decision
has been timely raised and preserved. Procedural bar doctrine answers
the question of whether an issue was timely raised and preserved, and
if not, whether it should be decided anyway.
Ardley, 273 F.3d at 992 (Carnes, J., concurring in the denial of rehearing en banc).
Requiring all parties to raise issues in their initial briefs is not unduly harsh
or overly burdensome. This is particularly true about constitutional challenges to
the federal sentencing guidelines, which have continued to be raised for many
years despite adverse precedent. Moreover, when Apprendi was decided in 2000,
criminal defense attorneys were well aware of Apprendi’s potential impact on the
sentencing guidelines well before the Supreme Court’s decisions in Blakely and
Booker. For example, in numerous cases before our Court, defense counsel, after
Apprendi and before Blakely, asserted that their clients’ rights to a jury trial were
violated when the district court enhanced their sentences with extra-verdict
enhancements not proved to a jury beyond a reasonable doubt. See, e.g., United
States v. Reese, 382 F.3d 1308, 1309 (11th Cir. 2004), vacated by 125 S. Ct. 1089
10
(2005)7; United States v. Petrie, 302 F.3d 1280, 1289-90 (11th Cir. 2002), cert.
denied, 538 U.S. 971, 123 S. Ct. 1775 (2003); United States v. Snyder, 291 F.3d
1291, 1294 n.3 (11th Cir. 2002); and United States v. Rodriguez, 279 F.3d 947,
949-50, 950 n.2 (11th Cir. 2002). These Apprendi-type arguments about federal
sentencing enhancements were made in those cases not only before Blakely but
also despite adverse precedent in United States v. Sanchez, 269 F.3d 1250 (11th
Cir. 2001).
Although it may be true that most attorneys could not have predicted the
Supreme Court’s precise resolution of the sentencing issues in Booker, the general
argument that the federal sentencing guidelines are unconstitutional or that a jury,
not a judge, must decide the facts supporting extra-verdict sentencing
enhancements was available to counsel long before Blakely and Booker. See
McGinnis, 918 F.2d at 1496 (stating that although no one could have predicted the
Supreme Court’s resolution of a case resolving the scope of § 1981, the general
argument that § 1981 did not apply to appellant’s conduct was available, and
appellant waived its argument by not raising it in its initial brief).8
7
For example, Reese’s initial brief was filed on January 20, 2004, before Blakely was
decided on June 24, 2004. In his initial brief on appeal, Reese made an Apprendi-based
argument about a sentencing enhancement he received. Reese, 382 F.2d 1308, 1310 n.1.
8
There is a good example of the continued availability of previously foreclosed arguments
in the Apprendi line of cases. Compare Walton v. Arizona, 497 U.S. 639, 649, 110 S. Ct. 3047,
11
Moreover, although this Court does not consider Blakely, now Booker,
issues not raised in any way in a party’s initial brief, we have liberally construed
what it means to raise a Blakely-type or Booker-type issue. See United States v.
Dowling, 403 F.3d 1242, 1246 (11th Cir. 2005) (evaluating whether a
Blakely/Booker claim was made by reviewing whether a defendant: (1) referred to
the Sixth Amendment; (2) referred to Apprendi or another related case; (3)
asserted his right to have the jury decide the disputed fact; or (4) raised a challenge
to the role of the judge as factfinder with respect to sentencing factors). Levy
concedes he made no such claim in any manner until his petition for rehearing.
Thus, the application of this Court’s prudential rule to foreclose defendant Levy’s
untimely Blakely, now Booker, claim does not result in manifest injustice.
IV. THE EFFECT OF SUPREME COURT REMANDS ON THE
APPLICATION OF THIS COURT’S PRUDENTIAL RULES
Finally, we discuss the specific remand order in Levy’s case. Since Booker,
the Supreme Court has remanded over a hundred of our Circuit’s cases with this
standard order or something similar: “The motion of petitioner for leave to
proceed in forma pauperis and the petition for writ of certiorari is granted. The
3054-55, 111 L.Ed. 511 (1990), with Ring v. Arizona, 536 U.S. 584, 588-89, 595, 122 S. Ct.
2428, 2432, 2436 (2002) (overruling Walton). The defendant in Ring preserved his argument
about Arizona’s capital sentencing scheme even though that argument appeared foreclosed by
Walton.
12
judgment is vacated and the case is remanded to the United States Court of
Appeals for the Eleventh Circuit for further consideration in light of United States
v. Booker, 543 U.S. ___ (2005).” As noted above, this same order was used in
Levy’s remand. Obviously, some of these remands, including Levy, involved
cases in which this Court applied its prudential rules and refused to consider
defendant’s belated efforts to raise Blakely/Booker claims. See, e.g., Levy v.
United States, – S. Ct. –, 2005 WL 540692 (U.S. June 6, 2005) (No. 04-8942);
Sears v. United States, 125 S. Ct. 1348 (2005); Dockery v. United States, 125 S.
Ct. 1101 (2005).9 As noted above, 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.
Further, in a concurring opinion in Ardley, Judge Carnes explained another
reason why this type of general remand does not necessarily impinge on this
Court’s application of its prudential rules, as follows:
9
In other cases where a defendant timely raised a Sixth Amendment or Apprendi or
Blakely issue in the opening brief, as many defendants did prior to Booker, this Court has
considered the merits of those claims. See, e.g., United States v. Burge, 407 F.3d 1183 (11th Cir.
2005); United States v. Martinez, 407 F.3d 1170 (11th Cir. 2005); United States v. Orduno-
Mireles, 405 F.3d 960 (11th Cir. 2005); United States v. Camacho-Ibarquen, 404 F.3d 1283 (11th
Cir. 2005), opinion vacated and superceded by – F.3d –, 2005 WL 1297236 (11th Cir. June 2,
2005); United States v. Shelton, 400 F.3d 1325 (11th Cir. 2005).
13
Whenever the Supreme Court decides an important issue of law, it
routinely takes every case in which the court of appeals decision came
out before the new decision was announced and in which the certiorari
petitioner claims that new decision might apply, and treats all of those
cases the same. The uniform treatment given all such cases is to vacate
the court of appeals judgment and remand the case for further
consideration in light of the new decision. Those boilerplate orders
come out in bushel baskets full. There is no implication in the standard
language of those orders that the court of appeals is to do anything
except reconsider the case now that there is a new Supreme Court
decision that may, or may not, affect the result. We have never felt
constrained to read anything into such routine remands other than the
direction that we take another look at the case because of the new
decision.
Ardley, 273 F.3d at 994 (Carnes, J., concurring in the denial of rehearing en banc).
As this Court has now consistently concluded, the Supreme Court’s general
remand in these types of cases does not mandate any particular outcome as to the
defendant’s sentence, nor do they preclude this Court from applying its prudential
rules in a uniform and consistent manner. See Pipkins, 2005 WL 1421449, at *2;
Sears, 2005 WL 1334892, at *1; Dockery, 401 F.3d at1262-63; Ardley, 273 F.3d
at 995 (Carnes, J., concurring in the denial of rehearing en banc).
Instead, what is required is that we take another look at this case and
consider it in light of Booker. We have done so, and, consistent with Booker and
our case law, we affirm Levy’s sentences for the reasons outlined herein and in our
prior opinions. We also reinstate our prior panel opinion affirming Levy’s
14
sentences in United States v. Levy, 374 F.3d 1023 (11th Cir. 2004), and, to the
extent necessary, our opinion denying Levy’s petition for rehearing by the panel in
United States v. Levy, 379 F.3d 1241 (11th Cir. 2004).
AFFIRMED and PRIOR OPINIONS REINSTATED.
15