[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
December 3, 2004
No. 01-17133 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
_______________________
(Opinion Aug. 3, 2004, 11th Cir., 379 F.3d 1241)
Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and
PRYOR, Circuit Judges.
O R D E R:
The Court having been polled at the request of one of the members of the
Court and a majority of the Circuit Judges who are in regular active service not
having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure;
Eleventh Circuit Rule 35-5), the Suggestion of Rehearing En Banc is DENIED.
/s/ J. L. EDMONDSON
CHIEF JUDGE
2
HULL, Circuit Judge, concurring in the denial of rehearing en banc, in which
ANDERSON, CARNES and PRYOR, Circuit Judges, join:
We concur in this Court’s denial of rehearing en banc because Defendant
Levy did not raise a claim regarding a right to a jury trial on his sentencing
enhancements until after this Court had affirmed his conviction and sentence.
Indeed, Levy pled guilty and concedes that he never asked for a jury trial on his
sentencing enhancements either in the district court or in his direct appeal to this
Court. See United States v. Levy, 374 F.3d 1023 (11th Cir. 2004) (affirming
conviction and sentence).
After this Court affirmed Levy’s conviction and sentence, the United States
Supreme Court decided Blakely v. Washington, 124 S. Ct. 2531 (2004), extending
the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348
(2000). Defendant Blakely argued that he had a right to a jury trial on “all facts
legally essential to his sentence.” Blakely, 124 S. Ct. at 2536. The United States
Supreme Court “rejected the state’s argument that Blakely’s case was
distinguishable from Apprendi because his 90-month sentence did not exceed the
10-year statutory maximum . . . .” United States v. Levy, 379 F.3d 1241, 1242
(11th Cir. 2004). Blakely is basically an extension of the Apprendi rule. See In re
Dean, 375 F.3d 1287, 1289-90 (11th Cir. 2004).
3
After Blakely, Levy filed a petition for rehearing in this Court and, for the
first time, argued that he had a right to a jury trial regarding his federal sentencing
enhancements. Although Blakely did not involve the federal sentencing
guidelines, Levy argued that “the reasoning” of Apprendi, Ring v. Arizona, 536
U.S. 584, 122 S. Ct. 2428 (2002), and Blakely clearly lead to the conclusion that
the federal sentencing guidelines are constitutionally infirm (hereinafter referred to
as Levy’s “Blakely-type” claim).
This Court properly denied Levy’s petition for rehearing based on this
Court’s long-standing rule that issues raised for the first time in a petition for
rehearing and not raised in an appellant’s initial brief will not be considered. See
Levy, 379 F.3d at 1242-45 (collecting cases). In denying Levy’s petition for
rehearing, this Court noted that
our practice has been longstanding. As we have explained, 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).” United States v. Ardley, 273 F.3d 991, 991
(11th Cir. 2001) (en banc). Importantly, this rule applies neutrally to all
appellants, whether the government or the defendant.
Levy, 379 F.3d at 1244.
The dissent concedes that: (1) the Levy panel was bound by circuit
precedent, see United States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001)
4
(collecting cases); and (2) this Court recently denied en banc review of the very
question in this case; that is, whether the rules concerning retroactivity are subject
to this Court’s procedural rules. See United States v. Ardley, 273 F.3d 991 (11th
Cir. 2001) (denying rehearing en banc and explaining why Defendant’s Apprendi
claim was procedurally barred) (Carnes, J., concurring), cert. denied, Ardley v.
United States, 535 U.S. 979, 122 S. Ct. 1457 (2002).
As in Ardley, there are two rules at issue in Levy’s case: (1) the rule that
Supreme Court decisions are to be retroactively applied to cases on direct review;
and (2) the procedural rule that entirely new constitutional issues will not be
considered for the first time by this Court in a petition for rehearing. The two
rules in this case are equally important, but play separate roles and answer
different questions. As we explained 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). Many of the dissent’s arguments
in this case are answered in Ardley, 273 F.3d at 991-93. In particular, Ardley
already explained why the dissent improperly conflates these two rules. Id.
Ardley also articulates why, if the dissent’s position was adopted, no type of
5
procedural bar could be adopted on direct appeal. Id. at 992.
The dissent’s main focus now is that under Griffith v. Kentucky, 479 U.S.
314, 107 S. Ct. 708 (1987), this Court is required to allow Defendant Levy to
raise, for the first time, a Blakely-type issue in a petition for rehearing after this
Court has issued an opinion affirming his conviction and sentence. The dissent
would have retroactivity rules trump and eliminate any procedural default rule on
direct appeal. Essentially, the dissent’s rule would be that a new Supreme Court
decision applies retroactively per se – even if the defendant has never raised or
preserved the constitutional issue and this Court has already affirmed the
defendant’s conviction and sentence – as long as the defendant is still in some
phase of the direct appeal process.
Nothing in Griffith, nor any other Supreme Court decision, requires this
result. In fact, Supreme Court precedent indicates that the rules of retroactivity are
subject to established principles of procedural default, waiver, and the like.
Indeed, as outlined below, the defendant in Griffith timely preserved the
constitutional error at issue during his trial and on appeal. The dissent dismisses
the fact that the defendants in Griffith preserved the constitutional issue. That fact
is important, however. We thus first examine Griffith in detail, and then other
arguments in the dissent.
6
I. SUPREME COURT CASE LAW
In Griffith, the United States 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 . . . .” Griffith, 479 U.S. at 328, 107 S.
Ct. at 716. A discussion of Griffith is in order because that decision is the
foundation for the dissent’s arguments. However, as explained below, nothing in
Griffith saved an unpreserved error in a direct appeal.
After the Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.
Ct. 1712 (1986), and rejected a portion of the reasoning of Swain v. Alabama, 380
U.S. 202, 85 S. Ct. 824 (1965), the Supreme Court granted certiorari in two
separate criminal cases from Kentucky and Oklahoma, in which the defendants
had made unsuccessful challenges under Swain to the government’s use of
peremptory challenges. Griffith, 479 U.S. at 316-20, 107 S. Ct. at 709-11. In each
of these cases, the defendant (prior to Batson) had preserved an objection in the
trial court and at every stage of his direct appeal that the prosecutor had exercised
his peremptory challenges in a racially discriminatory manner. Griffith, 479 U.S.
at 316-20, 107 S. Ct. at 709-11. The defendants made this objection at every stage
even though the defendants had clearly failed to prove that the prosecutor had
engaged in a pattern of challenging black jurors in a series of cases, as required by
7
Swain. See id. (discussing procedural history of the two cases). Not surprisingly,
each defendant lost at each stage of his direct appeal because each court held that
the proof of discrimination was inadequate under Swain. Id. (same).
In mid-1985, the defendants in Griffith petitioned the Supreme Court for
certiorari while their convictions were still on direct review. On April 30, 1986,
the United States Supreme Court decided Batson. In Batson, the Supreme Court
departed from Swain’s requirement of a pattern of racial discrimination
requirement in a series of cases and concluded that a criminal defendant could
establish a prima facie case of racial discrimination violative of the Fourteenth
Amendment, based solely on the prosecution’s use of peremptory challenges to
strike members of the defendant’s race from the jury venire in the defendant’s
case. Batson, 476 U.S. at 93, 96-97, 106 S. Ct. at 1721-23. Furthermore, once the
defendant had made the prima facie showing, the burden shifted to the prosecution
to come forward with a neutral explanation for those challenges. Id. at 97, 106 S.
Ct. at 1723. On June 2, 1986, the Supreme Court granted certiorari in Griffith for
the limited issue of whether Batson would be applied retroactively on direct
appeal. Griffith, 479 U.S. at 320, 107 S. Ct. at 711.
The retroactive application of Batson appeared to be foreclosed by United
States v. Johnson, 457 U.S. 537, 102 S. Ct. 2579 (1982), in which the Supreme
8
Court had explained that, when a new rule of criminal procedure is a “clear break”
with past precedent, as Batson was a clear break from Swain,1 the new rule was
not to be applied retroactively to cases on direct appeal. Griffith, 479 U.S. at 326,
107 S. Ct. at 715. Despite courts’ repeated conclusions that the defendants had
failed to satisfy Swain, the Griffith defendants continued to argue, and therefore
preserve, that the government exercised its peremptory challenges in a racially
discriminatory manner.
The persistence of the Griffith defendants paid off. The Supreme Court
granted their petitions, discarded the “clear break” rule described in Johnson, and
applied Batson retroactively to their appeal. Griffith, 479 U.S. at 326-28, 107 S.
Ct. at 715-16. The Supreme Court reversed their convictions based on
considerations of fairness for defendants who were similarly situated to the
defendant in Batson – that is, defendants who, like Batson, had preserved their
objections to the prosecution’s race-based peremptory challenges during trial and
on appeal. The Griffith Court did not require, however, that a dissimilarly situated
defendant – one who did not preserve his objections to race-based peremptory
challenges – would somehow benefit from the retroactive application of Batson.
Griffith dealt with a Batson situation in which the defendants properly
1
See Allen v. Hardy, 478 U.S. 255, 106 S. Ct. 2878 (1986).
9
presented and preserved their constitutional challenges to the prosecution’s use of
peremptory strikes both during trial and throughout direct review. Importantly,
the defendants preserved the issue by raising Batson-type challenges before the
Supreme Court decided Batson.
Therefore, the dispute between the majority and the dissent in this case is
largely over whether Griffith’s retroactivity rule should be extended to
unpreserved error raised for the first time after a decision on the merits of a direct
appeal. That is, should all defendants during any portion of direct review
automatically get the benefit of retroactivity no matter when they raise the issue or
is the application of the Griffith retroactivity rule subject to well-established rules
regarding unpreserved error, waiver, and procedural default.
As mentioned above, Griffith dealt with a Batson claim in which the
defendants properly presented and preserved their constitutional challenges to the
prosecution’s use of race-based peremptory strikes both during trial and
throughout direct review. Therefore, Griffith cannot, and does not, control a
situation in which the defendant, such as Levy, never raised nor preserved a
constitutional challenge, but, instead, raises it for the first time in a petition for
10
rehearing after this Court has affirmed his conviction and sentence.2
Although the dissent dismisses the fact that the defendants in Griffith
preserved their Batson-type claims, the Supreme Court has already recognized the
important distinction between those litigants who preserve issues and those who
do not. In Shea v. Louisiana, 479 U.S. 51, 59 105 S. Ct. 1065, 1070 (1985), which
is discussed in Griffith, the Supreme Court concluded that the new rule announced
in Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1981), applied to cases
pending on direct review at the time Edwards was decided. Notably, the Shea
Court stated that “[a]s we hold, if a case was pending on direct appeal at the time
Edwards 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, 479 U.S. at 58 n.4, 105 S. Ct. at 1069 n.4 (emphasis added). The
dissent is unable to point to any decision where the Supreme Court applied a new
constitutional rule retroactively to litigants who did not previously preserve the
issue on appeal.
2
See Anders v. Hometown Mortgage Servs., Inc., 346 F.3d 1024, 1031 (11th Cir. 2003)
(“[W]hile we must apply [a prior] decision to facts and circumstances sufficiently similar to
those under which it arose, we are not obligated to extend the decision to different situations.”);
Watts v. BellSouth Telecomms., Inc., 316 F.3d 1203, 1207 (11th Cir. 2003) (“[J]udicial
decisions cannot make law beyond the facts of the cases in which those decisions are
announced.”); United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000) (per curiam)
(“The holdings of a prior decision can reach only as far as the facts and circumstances presented
to the court in the case which produced that decision.” (citation and internal marks omitted)).
11
II. PROCEDURAL RULES
As noted above, independent of and separate from the Griffith holding is
this Court’s long-standing procedural rule that issues must be properly presented
in the opening briefs before this Court is required to address them. Ardley, 242
F.3d at 990 (collecting cases). As the dissent admits, the Ardley Court, in 2001,
applied this long-standing procedural rule in an Apprendi-context similar to the
situation presented in Levy.
In Ardley, the Supreme Court remanded the defendant’s case to this Court
so that it could be reconsidered in light of Apprendi. Ardley, 242 F.3d at 990.
The Ardley Court determined that the fact that the defendant failed to properly
present and preserve his arguments trumped whatever merit those constitutional
arguments might have, stating: “In the absence of any requirement to the contrary
in either Apprendi 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.” Ardley, 242 F.3d at 990 (citing cases). This Court’s
procedural rule has operated independently of Griffith for a long time because it is
not inconsistent in any way with the preserved-error Batson issue addressed in
Griffith. In fact, the Supreme Court itself has recognized that the retroactivity rule
is “subject, of course, to established principles of waiver, harmless error, and the
12
like.” Shea, 479 U.S. at 58 n.4, 105 S. Ct. at 1069 n.4. This is another way of
saying that the retroactivity rule is subject to procedural rules and does not operate
in a vacuum.
Because neither Griffith nor any other Supreme Court decision controls the
present situation, the question, in effect, is: Should this Court change its long-
standing precedent and extend Griffith to unpreserved error or should Levy, as
similar defendants in the past, be held to this Court’s long-standing procedural
rules?
This Court recently made that choice in Ardley and concluded, as explained
above, that a defendant is bound by this Court’s procedural rules, even in light of
new constitutional rights. See Ardley, 242 F.3d at 990. Therefore, as the dissent
concedes, circuit precedent squarely on point mandates that we conclude that Levy
cannot raise his Blakely-type issues that were not properly presented and
preserved. Because this Court’s procedural rules require that all issues be raised
in an appellant’s opening brief, and Levy first raised his Blakely-type claim in a
petition for rehearing after a decision affirming his conviction and sentence, this
Court need not consider Levy’s Blakely-type issue.
III. ADMINISTRATION OF JUSTICE
The dissent claims that if this Court does not permit Levy to raise his
13
Blakely-type claim at this late stage, we unnecessarily invite litigants to raise a
whole host of questionable issues on the off-chance the Supreme Court might
reverse course on some line of precedent while their direct appeal is pending. The
dissent’s logic is flawed for two reasons.
First, the dissent’s catastrophic predictions regarding the orderly
administration of justice if this Court elects not to consider the defendant’s
Blakely-type claim are simply incorrect and unfounded. Rather, attorneys will
continue to raise issues that are within the scope of acceptable arguments. For
example, the long and useless laundry list predicted by the dissent in Ardley, and
again here, has not materialized on account of the plain-error standard of review.
If defendants were going to raise a long and useless laundry list of objections, they
already would have been doing exactly that in the district court so objections could
receive full de novo review by this Court, rather than plain-error review. See Maiz
v. Virani, 253 F.3d 641, 676 (11th Cir. 2001) (“Plain error review is an extremely
stringent form of review.” (citation omitted)); United States v. King, 73 F.3d 1564,
1572 (11th Cir. 1996) (“The plain error test is difficult to meet.” (quotation marks
and citations omitted)).
Second, the rule announced in Ardley and Levy is not overly harsh because
nothing in our precedent prevented Levy from raising his Blakely-type claim in his
14
initial brief on direct appeal . While it is correct that this Court’s en banc decision
in United States v. Sanchez, 269 F.3d 1250 (11th Cir. 2001) (en banc), means that
his Blakely-type claim likely would have failed, that likely failure does not mean
that Levy could not have made the argument to the panel and later in a petition for
rehearing en banc. More importantly, Levy could have raised the argument to
preserve the issue for certiorari review.
This is to say that a litigant is never precluded from raising an issue simply
because a previous appeal has been decided that rejects a particular argument.
This is so because there is nothing prohibiting this Court sitting en banc or the
Supreme Court from reconsidering or overruling arguments that had previously
been rejected. See, e.g., Engle v. Isaac, 456 U.S. 107, 130, 102 S. Ct. 1558, 1573
(1982) (“Even a state court that has previously rejected a constitutional argument
may decide, upon reflection, that the contention is valid.”).
There is a good example of the continued availability of previously
foreclosed arguments in the Apprendi line of cases. In Walton v. Arizona, 497
U.S. 639, 649, 110 S. Ct. 3047, 3054-55 (1990), the Supreme Court held that the
Arizona capital sentencing scheme did not violate the Sixth Amendment because
the additional facts found by the judge were sentencing considerations, not
“element[s] of the offense of capital murder.” After Apprendi, the Supreme Court,
15
in Ring, overruled Walton “to the extent that it allows a sentencing judge, sitting
without a jury, to find an aggravating circumstance necessary for imposition of the
death penalty.” Ring, 536 U.S. at 609, 122 S. Ct. at 2428. In Ring, the Supreme
Court concluded that “[b]ecause Arizona’s enumerated aggravating factors operate
as ‘the functional equivalent of an element of a greater offense,’ . . . the Sixth
Amendment requires that they be found by a jury.” Id. (quoting Apprendi, 530
U.S. at 494 n.19). The defendant in Ring preserved his argument under Apprendi
even though that argument appeared to be foreclosed by Walton.
More significantly, after our Sanchez decision, but before the Supreme
Court’s Blakely decision, numerous defendants before this Court raised Apprendi-
type arguments in their challenges to enhancements under the federal Sentencing
Guidelines. In 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, 950 n.2 (11th Cir. 2002), the defendants asserted before this Court that the
district court violated their rights to a jury trial when it enhanced their sentences
because a jury did not determine beyond a reasonable doubt all facts legally
essential to their sentences. These cases all came after Sanchez and before
Blakely and illustrate that many defendants were asserting Apprendi-type
16
arguments about federal sentencing enhancements and that defendants have not
been prevented from making that argument despite a prior adverse precedent of
this Court.
More recently, in United States v. Reese, 382 F.3d 1308 (11th Cir. 2004), the
defendant, despite Sanchez, preserved his Apprendi-type argument to his federal
sentencing enhancements in the district court. Specifically, the district court
concluded that Reese possessed a firearm in connection with another felony
offense because drugs were found in the glove compartment of the vehicle Reese
was driving. Reese argued to the district court and to this Court that this fact
finding should have been determined by a jury beyond a reasonable doubt;
namely, that the presence of the drugs constituted a felony, rather than a simple
possession misdemeanor. Reese asserted that the district court’s findings usurped
the role of the jury and violated the core value of Apprendi. Reese, 382 F.3d at
1309.
Furthermore, because Reese properly preserved his Apprendi type argument
both in the district court and this Court, this Court permitted Reese to file a
supplemental letter brief and address the implications of Blakely. Reese, 382 F.3d
at 1309. Levy could have done the same in his petition for rehearing if he had at
least raised an Apprendi-type claim in his initial brief on appeal.
17
As shown in Reese, Petrie, Snyder, and Rodriguez, the rule in Levy and
Ardley laudably encourages counsel for defendants to become knowledgeable
about Supreme Court decisions, such as Apprendi, and to consider making
arguments that are based on reasonable extensions of existing Supreme Court case
law. At the time Levy filed his initial brief, lawyers were clearly on notice that
such Apprendi-type arguments could be reasonably advanced based on existing
Supreme Court precedent.3 This Court’s procedural rules force lawyers to look at
the applicability of such arguments at an earlier stage so that they can receive
3
While an attorney’s failure to anticipate a change in the law does not constitute ineffective
assistance of counsel, attorneys routinely make arguments based on reasonable extensions of
existing Supreme Court case law. The comments of the Supreme Court dissenters may have
encouraged the attorneys in Reese, Petrie, Snyder, and Rodriguez. For example, in Jones v.
United States, 526 U.S. 227, 119 S. Ct. 1215 (1999), Justice Kennedy noted:
Departing from this recent authority, the Court’s sweeping constitutional discussion
casts doubt on sentencing practices and assumptions followed not only in the federal
system but also in many States. Thus, among other unsettling consequences, today’s
decision intrudes upon legitimate and vital state interests, upsetting the proper federal
balance. I dissent from this unfortunate and unnecessary result.
Id. at 254, 119 S. Ct. 1229-30 (Kennedy, J., dissenting) (emphasis added). Justice O’Connor
echoed Justice Kennedy’s concerns in Apprendi, and stated:
Justice Kennedy rightly criticized the [Jones] Court for its failure to explain the
origins, contours, or consequences of its purported constitutional principle; for the
inconsistency of that principle with our prior cases; and for the serious doubt that the
holding cast on sentencing systems employed by the Federal Government and States
alike. Today, in what will surely be remembered as a watershed change in
constitutional law, the Court imposes as a constitutional rule the principle it first
identified in Jones.
Apprendi, 530 U.S. at 523-24, 120 S. Ct. at 2380 (O’Connor, J., dissenting) (emphasis added).
18
either full or, at least, plain-error review by this Court or the Supreme Court.
This Court’s precedents establish a clear, consistent, and workable rule, and
one that is not overly harsh.4 As the Supreme Court has stated, “we see little
reason why counsel’s failure to detect a colorable constitutional claim should be
treated differently from a deliberate but equally prejudicial failure by counsel to
raise such a claim.” Murray v. Carrier, 477 U.S. 478, 492, 106 S. Ct. 2639, 2647
(1986).
IV. WAIVER, FORFEITURE, and ABANDONMENT
The dissent also 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
between waiver, forfeiture, and abandonment. The issue is not whether this Court
4
In fact, in Levy’s case, the panel opinion already notes: “[W]e conclude that there is no
miscarriage of justice if we decline to address Blakely-type issues not raised in opening briefs on
appeal. Levy, 379 F.3d at 1243 n.3.
19
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.
In fact, the dissent’s position is internally inconsistent. Although the dissent
argues that this Court should permit the defendant to raise a Blakely-type claim at
any point while still on direct review, the dissent recognizes that issues not raised
at trial should be reviewed for plain error only. In effect, the dissent recognizes
that procedural default rules relating to the timeliness of issues raised at trial
should be enforced, but that this Court is without the power to enforce its own
procedural default rules during the appellate process.
The dissent never explains why enforcing trial-level procedural default rules
by limiting appellate review to plain error is somehow permissible under the
Supreme Court’s retroactivity doctrine, but enforcing appellate-level procedural
default rules is not. As Judge Carnes stated in Ardley: “If the retroactivity
doctrine requires that we address issues that have been procedurally defaulted on
appeal, why does it not require that we address full bore those issues that have
been procedurally defaulted at trial instead of limiting our review to plain error?”
20
Ardley, 273 F.3d at 993 (Carnes, J., concurring).5 This Court’s application of
well-established procedural default rules is prudent and well-established. That is,
“[t]he retroactivity doctrine either trumps the procedural default doctrine or it does
not. Our position, which is consistent, is that it does not.” Id.
V. CONCLUSION
As in Ardley, this Court correctly denied Levy’s petition for rehearing en
banc. Contrary to the dissent’s arguments, Supreme Court precedent does not
mandate that rules of retroactivity automatically trump all procedural rules.
Instead, Supreme Court case law clearly indicates that rules of retroactivity are
subject to procedural rules, such as waiver and the like.
The uniform application of this Court’s procedural default rules provides a
clear, intelligent, and consistent rule for litigants to follow: raise the issue in your
initial brief or risk procedural bar. This rule applies equally to all litigants,
whether the government or a criminal defendant.
5
As we explained in Ardley, “[o]ne of the best indications of the narrowness of plain error
review is the fact that this Court has not yet found any Apprendi error to fit within the scope of
the plain error doctrine.” Ardley, 273 F.3d at 992 (Carnes, J., concurring) (collecting cases).
21
TJOFLAT, Circuit Judge, dissenting from the denial of rehearing en banc, in
which WILSON, Circuit Judge, joins:
The facts of this case are set forth in detail in the panel’s first opinion. See
United States v. Levy, 374 F.3d 1023, 1024-29 (11th Cir. 2004). Pursuant to a
written plea agreement, defendant Raphael Levy pled guilty to conspiracy to
commit mail fraud and conspiracy to commit money laundering. The district court
sentenced Levy to 120 months on the mail fraud charge and 48 months on the
money laundering charge, with the sentences to be served consecutively, for a total
sentence of 168 months. The sentence included a two-level vulnerable victim
enhancement and a four-level role-in-the-offense enhancement. On June 23, 2004,
the panel affirmed Levy’s sentences, rejecting his claims that the Government
breached his plea agreement and that the district court had deprived him of due
process by allowing certain witnesses to testify at his sentencing hearing. The
next day, the United States Supreme Court held that
the “statutory maximum” for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts reflected
in the jury verdict or admitted by the defendant. In other words, the
relevant “statutory maximum” is not the maximum sentence a judge
may impose after finding additional facts, but the maximum he may
impose without any additional findings.
Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531, 2537, 159 L. Ed. 2d 403
22
(2004) (citations omitted).1 Although the Court formally “express[ed] no opinion
on” the constitutionality of the Federal Sentencing Guidelines, id. at __, 124 S. Ct.
at 2538 n.9, the decision has, at a minimum, “cast a long shadow over [them].”
United States v. Booker, 375 F.3d 508, 510 (7th Cir. 2004), cert. granted,__ U.S.
__, 125 S. Ct. 11, __ L. Ed. 2d __, (Aug. 2, 2004) (No. 04-104). Indeed, the Court
has since granted certiorari and heard oral arguments on precisely this issue. Id.;
United States v. Fanfan, __ U.S. __, 125 S. Ct. 12, __ L. Ed. 2d __, (Aug.2, 2004)
(No. 04-105).
Following Blakely—and before his conviction had become final—Levy
filed a petition for rehearing in which he argued for the first time that under
Blakely he had a Sixth Amendment right to a jury trial on his federal sentencing
enhancements. United States v. Levy, 379 F.3d 1241, 1241-42 (11th Cir. 2004).
That this was the first time that Levy had advanced such a claim is certainly
understandable given that this court unequivocally rejected the same argument in
United States v. Sanchez, 269 F.3d 1250, 1262 (11th Cir. 2001). Nevertheless, the
panel refused to “entertain this new issue because Levy did not timely raise it in
1
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), held that,
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Id. at 490, 120 S. Ct. at 2362-63.
23
his initial brief on appeal.” Levy, 379 F.3d at 1242.2
The panel’s decision in this case is problematic for four reasons. First, it
unjustifiably limits the principle of Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct.
708, 93 L. Ed. 2d 649 (1987), 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 (emphasis added). Second, by
erroneously terming Levy’s failure to raise a Blakely-type claim in his opening
brief a “waiver” rather than a mere “forfeiture,” the decision unduly limits our
scope of review under Federal Rule of Criminal Procedure 52(b), as interpreted by
the Supreme Court in United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770, 123
L. Ed. 2d 508 (1993). Third, it continues a circuit split that finds this court
standing alone.3 Fourth, it sends a clear message to appellate counsel that they
2
See also United States v. Njau, 386 F.3d 1039, 1041-42 (11th Cir. 2004) (refusing to
consider a Blakely claim first raised in a letter submitted pursuant to Federal Rule of Appellate
Procedure 28(j)); United States v. Hembree, 381 F.3d 1109, 1110 (11th Cir. 2004) (denying
motion to file a substitute or amended principal brief raising a Blakely claim); United States v.
Curtis, 380 F.3d 1308, 1310-11 (11th Cir. 2004) (denying motion to file supplemental brief
raising Blakely claim).
3
United States v. Ardley, 242 F.3d 989, reh’g en banc denied, 273 F.3d 991 (11th Cir. 2001),
created this circuit split by refusing to consider an Apprendi claim in a case in which the
Supreme Court GVR’d in light of Apprendi—i.e., granted the petition for certiorari, vacated our
initial judgment, and remanded for reconsideration in light of Apprendi. See 242 F.3d at 990
(concluding that nothing in the standard GVR requires a court of appeals to consider arguments
not raised in a defendant’s initial brief on appeal). But see Stutson v. United States, 516 U.S.
193, 197, 116 S. Ct. 600, 603, 133 L. Ed. 2d 571 (1996) (“a GVR order both promotes fairness
and respects the dignity of the Court of Appeals by enabling it to consider potentially relevant
24
should brief every colorable claim—even those claims that are squarely foreclosed
by our own precedent—or else risk costing their clients the benefit of a favorable
intervening decision.4 As a result, counsel will be tempted to be less
discriminating in selecting issues to be argued on appeal, and briefs will
necessarily be less specific and clear, which will in turn significantly hinder the
fair and efficient administration of justice in this circuit. For these reasons, I
dissent from the denial of rehearing en banc.
I.
In Griffith, the Supreme Court held 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.” 479 U.S. at 328, 107 S. Ct. at 716 (emphasis
added). A case is “final” and thus outside the scope of Griffith only when “a
judgment of conviction has been rendered, the availability of appeal exhausted,
and the time for a petition for certiorari elapsed or a petition for certiorari finally
decisions and arguments that were not previously before it” (emphasis added)).
4
Compare with United States v. Battle, 163 F.3d 1, 1-2 (11th Cir. 1998) (citations omitted):
Even in a death-penalty case, the court expects counsel to be highly selective
about the issues to be argued on appeal . . . .
....
The Supreme Court of the United States has . . . stressed . . . that the best
advocacy relies on selectivity. It is well settled that counsel need not “raise every
‘colorable’ claim” on appeal.
25
denied.” Id. at 321 n.6, 107 S. Ct. at 712 n.6. Any failure to adhere to this clear
rule “violates basic norms of constitutional adjudication” for two reasons:
First, it is a settled principle that this Court adjudicates only “cases”
and “controversies.” Unlike a legislature, we do not promulgate new
rules of constitutional criminal procedure on a broad basis. Rather,
the nature of judicial review requires that we adjudicate specific
cases, and each case usually becomes the vehicle for announcement
of a new rule. But after we have decided a new rule in the case
selected, the integrity of judicial review requires that we apply that
rule to all similar cases pending on direct review.
....
Second, selective application of new rules violates the principle
of treating similarly situated defendants the same. . . . [T]he problem
with not applying new rules to cases pending on direct review is “the
actual inequity that results when the Court chooses which of many
similarly situated defendants should be the chance beneficiary” of a
new rule.
Id. at 322-23, 107 S. Ct. at 713 (quoting United States v. Johnson, 457 U.S. 537,
556 n.16, 102 S. Ct. 2579, 2590 n.16, 73 L. Ed. 2d 202 (1982)). The Court further
noted that because it cannot, “[a]s a practical matter, . . . hear each case pending on
direct review and apply the new rule,” it “fulfill[s] [its] judicial responsibility by
instructing the lower courts to apply the new rule retroactively to cases not yet
final.” Griffith, 479 U.S. at 323, 107 S. Ct. at 713.
Applying this rule in criminal cases, the Court has never drawn distinctions
26
among defendants on any basis other than the finality of their convictions.5 In
Griffith, for example, the Court discarded the “clear break” exception to
retroactivity because it concluded that the fact that a decision is a clear break with
precedent simply “has no bearing on the ‘actual inequity that results’ when only
one of many similarly situated defendants receives the benefit of the new rule” or
the principle that a court must “not disregard current law[] when it adjudicates a
case pending before it on direct review.” Id. at 326-27, 107 S. Ct. at 715-16
(quoting Johnson, 457 U.S. at 556 n.16, 102 S. Ct. 2591 n.16). Likewise, in this
case, it is difficult to see how the fact that Levy’s brief omitted a claim that was
then squarely foreclosed by our own precedent either mitigates the “actual inequity
that results” from distinguishing between Levy and a similarly situated defendant
who did raise the issue (perhaps only because his lawyer had not even read
Sanchez) or justifies our disregarding the law as it now stands.
The only distinction the Court has made for purposes of retroactivity in
5
See, 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 (holding “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, with no exception for cases in which the new rule constitutes a
‘clear break’ with the past”); Johnson, 457 U.S. at 556 & n.17, 102 S. Ct. at 2591 & n.17
(holding that in Fourth Amendment cases “all nonfinal convictions” must be decided “under the
same rule of law” and rejecting the alternative standards for retroactivity).
27
criminal cases is between direct and collateral review: “[u]nless 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.” Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075, 103 L.
Ed. 2d 334 (1989) . This distinction is not simply one of convenience, but rather
derives from the very function and purpose of federal habeas corpus:
[T]he threat of habeas corpus serves as a necessary additional
incentive for trial and appellate courts throughout the land to conduct
their proceedings in a manner consistent with established
constitutional standards. In order to perform this deterrence function,
. . . the habeas court need only apply the constitutional standards that
prevailed at the time the original proceedings took place.
Id. at 306, 109 S. Ct. at 1073 (quoting Desist v. United States, 394 U.S. 244, 262-
63, 89 S. Ct. 1030, 1041, 22 L. Ed. 2d 248 (1969) (Harlan, J., dissenting)). Thus,
because habeas does not exist simply to serve some “perceived need to assure that
an individual accused of a crime is afforded a trial free of constitutional error,”
weighty “interests of comity and finality” have persuaded the Court that new rules
governing criminal prosecutions should not be applied retroactively in cases that
are already final. Teague, 489 U.S. at 308, 109 S. Ct. at 1074. These interests do
not, however, apply to direct appeals from federal convictions. Comity, of course,
is an issue only where a federal habeas court reviews a state conviction. And an
28
interest in finality weighs in favor of addressing Levy’s claims now, for he will
certainly raise them on collateral review if we do not.6
Griffith’s holding is therefore clear: retroactivity extends to all cases still
pending on direct review. There is simply nothing in the opinion to suggest that a
defendant must raise the issue in his initial appellate brief in order to receive the
benefit of retroactivity. To the contrary, it consistently refers to all cases or all
convictions not yet final. Griffith, 479 U.S. at 323, 324, 328, 107 S. Ct. at 713,
716 (emphasis added). That the defendant in Griffith advanced the argument that
ultimately resulted in the new rule is, of course, true, but the Court in no way
emphasized this fact or made it a part of its holding. Therefore, while it is also
true that the Griffith Court was concerned that “selective application of new rules
violates the principle of treating similarly situated defendants the same,” any
suggestion that Levy is dissimilarly situated simply because he failed to predict
Blakely in his initial brief overlooks the next three sentences of the opinion, which
refer to “cases pending on direct review,” “cases on direct review,” and “all
convictions . . . not yet final.” Id. at 323-24, 107 S. Ct. at 713. Griffith therefore
6
Concurring in the denial of rehearing en banc in Ardley, Judge Carnes emphasized that our
precedent foreclosed any Apprendi-based habeas claims the defendant, whose situation was
much like Levy’s, might bring. See 273 F.3d at 993-94. But the fact that Levy is unlikely to
succeed on collateral review does not mean that he cannot try, which means that a district court
will in all likelihood have to address this claim and, ultimately, that we will as well, at least in
the form of an application for a certificate of appealability.
29
requires us to consider Levy’s claim because Blakely was decided before his
conviction became final.7
Levy may, of course, raise his Blakely claim on collateral review, either as a
substantive Blakely claim or in the form of an ineffective assistance claim. If,
however, we consider how such claims will be received, it becomes even clearer
that Griffith requires us to consider them on direct review notwithstanding their
omission from Levy’s initial brief. On one hand, it appears unlikely that in a 28
U.S.C. § 2255 proceeding Levy will be able to establish “cause” for his failure to
raise a timely Blakely claim on direct review. See McCoy v. United States, 266
F.3d 1245, 1258-59 (11th Cir. 2001) (holding that neither the novelty of, nor
7
In Shea v. Louisiana, 470 U.S. 51, 58 n.4, 105 S. Ct. 1065, 1069 n.4, 84 L. Ed. 2d 38 (1985),
the Court discussed the retroactive application of Edwards v. Arizona, 451 U.S. 477, 101 S. Ct.
1880, 68 L. Ed. 2d 378 (1981), as follows:
As we hold, if a case was pending on direct review at the time Edwards was
decided, the appellate court must give retroactive effect to Edwards, subject, of
course, to established principles of waiver, harmless error, and the like. If it does
not, then a court conducting collateral review of such a conviction should rectify
the error and apply Edwards retroactively.
As in Griffith, retroactivity is phrased in mandatory terms: if a case is pending on direct review
when a new rule is announced, appellate courts must give the decision retroactive effect. The
Court does say that retroactivity is “subject . . . to established principles of waiver.” But as is
discussed in Part II, infra, the panel’s conclusion that “Levy . . . waived his Blakely-type claim by
not raising it in his initial brief on appeal,” Levy, 379 F.3d at 1245, is flatly inconsistent with
Supreme Court precedent on the meaning of “waiver,” and therefore does not support limiting
retroactivity or precluding review under Federal Rule of Criminal Procedure 52(b).
The Court also states here that if a new rule is not given retroactive effect on direct
review, “then a court conducting collateral review . . . should rectify the error and apply [it]
retroactively.” Thus, because other circuits do not consider claims like Levy’s “waived,” if a
state court outside this circuit did not apply Blakely retroactively in a direct appeal like this one,
a federal habeas court would “rectify the error” and apply it retroactively on collateral review.
30
perceived futility of raising, an Apprendi claim constitutes “cause” for failure to
raise the issue on direct review). And on the other hand, an ineffective assistance
claim based on counsel’s failure to raise the Blakely issue in his initial brief also
appears unlikely to succeed. See, e.g., Pitts v. Cook, 923 F.2d 1568, 1573-74
(11th Cir. 1991) (holding that counsel’s failure to raise a Batson-type claim pre-
Batson did not constitute ineffective assistance of counsel and that counsel’s
failure to be “innovative” will rarely, if ever, support such a claim); Brown v.
United States, 311 F.3d 875, 878 (8th Cir. 2002) (holding that counsel’s failure to
raise an Apprendi claim on direct appeal does not constitute ineffective assistance
of counsel “simply because the court [previously held] that an Apprendi-type
challenge was reasonably available” at the time of direct appeal).
We have previously concluded that such “a ‘gap’ between the spheres of
novelty and ineffective assistance of counsel” is not problematic, but is merely a
function of the scope of “cause” on the one hand and “ineffective assistance” on
the other. See Pitts, 923 F.2d at 1573. But when the rule established in United
States v. Ardley, 242 F.3d 989, reh’g en banc denied, 273 F.3d 991 (11th Cir.
2001) and followed here is applied in a “gap” case, the upshot is that a new rule
governing criminal prosecutions that should be retroactively applicable to all cases
still pending on direct review becomes completely unavailable to a defendant such
31
as Levy—whose appeal was pending when the rule was announced—in any form
on either direct or collateral review. Thus, Levy’s Blakely claim will end up
receiving the same treatment as a prisoner whose conviction was already final
when Blakely was decided, thereby rendering the distinction Griffith and Teague
draw between final and non-final convictions meaningless.
Moreover, the fact that Levy’s potential ineffective assistance claim is
unlikely to succeed illustrates a further point: the Ardley-Levy rule effectively
limits retroactivity in cases such as Levy’s to defendants whose counsel was
“innovative” (Pitts, supra)—i.e., better than just “effective.” Yet the quality of a
defendant’s lawyer is clearly irrelevant to Griffith’s rationale that “similarly
situated defendants” should be treated “the same” and that “the integrity of judicial
review requires that we apply that rule to all similar cases pending on direct
review.” Griffith, 479 U.S. at 322-23, 107 S. Ct. at 713. Indeed, in cases such as
this one, the Ardley-Levy rule effectively recreates the very clear break exception
that the Griffith Court rejected—i.e., because counsel is unlikely to press claims
that would require a clear break with precedent, Ardley-Levy will deprive the
client of the benefit of retroactivity should that clear break subsequently occur.
In Ardley and again here, this court “has essentially superimposed an
additional requirement onto retroactivity determinations. While the Supreme
32
Court has clearly stated that all cases pending on direct appeal at the time of an
intervening decision are entitled to the benefit of a new rule, the panel’s decision
narrows the class of cases entitled to retroactivity.” Ardley, 273 F.3d at 999
(Tjoflat, J., dissenting from the denial of rehearing en banc). This continues to be
the only circuit in which “cases are entitled to the benefit of an intervening
decision only if: 1) the case was not yet final at the time of the intervening
decision; and 2) the litigant presaged the intervening decision by raising the issue
addressed by that decision in the litigant’s initial brief on appeal.” Id. Perhaps
Ardley and Levy are only an attempt to limit the impact of the Supreme Court’s
recent watershed sentencing decisions. See Douglas A. Berman, Do-overs?,
Sentencing Law and Policy, Aug. 4, 2004, at
http://sentencing.typepad.com/sentencing_law_and_policy/2004/08/doovers.html
(noting that “the potential number of sentencing ‘do-overs’ after Blakely is mind-
boggling” and citing Levy as “evidence that lower courts are going to resist ‘do-
overs’ however they can”). But when the Supreme Court decided Griffith, it was
well aware that extending retroactivity to all cases pending on direct review would
cause such disruption in the lower courts. In other words, the Court has already
weighed the “reliance by law enforcement authorities on the old standards and
effect on the administration of justice of a retroactive application of the new rule”
33
against the equality and institutional concerns discussed above and determined
retroactivity should extend “to all cases . . . pending on direct review or not yet
final.” Griffith, 479 U.S. at 324-25, 328, 107 S. Ct. at 714, 716 (emphasis added).
As a court of appeals, we cannot now reevaluate such considerations on a case-by-
case basis—Griffith made this decision for us.
II.
“A plain error that affects substantial rights may be considered even though
it was not brought to the court’s attention.” Fed. R. Crim. P. 52(b). “If a legal rule
was violated during the district court proceedings, and if the defendant did not
waive the rule, then there has been an ‘error’ within the meaning of Rule 52(b)
despite the absence of a timely objection.” Olano, 507 U.S. at 732-33, 113 S. Ct.
at 1777 (emphasis added). The panel held that “Levy . . . waived his Blakely-type
claim by not raising it in his initial brief on appeal.” Levy, 379 F.3d at 1245
(emphasis added). Although the panel opinion suggests that this conclusion is
straightforward and uncontroversial, it is not; in fact, a finding of “waiver” is
critical to the issue presented by Levy’s petition for rehearing. This is because
“[m]ere forfeiture, as opposed to waiver, does not extinguish an ‘error’ under Rule
34
52(b).” Olano, 507 U.S. at 733, 113 S. Ct. at 1777 (emphasis added).8
“Waiver 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.’” Id. (quoting Johnson v. Zerbst, 304 U.S. 458,
464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938)). Here, Levy was unaware of a
Sixth Amendment right to a jury trial on his federal sentencing enhancements until
Blakely was decided. Indeed, Levy’s first brief was filed more than a year before
the Court granted certiorari in Blakely,9 and our decision in Sanchez specifically
held that he had no such right, see 269 F.3d at 1262. As such, it simply makes no
sense to say that Levy “waived” his Blakely claim, as no such “known right”
8
Tellingly, Rule 52(b) refers to errors “not brought to the court’s attention,” not errors not
brought to the trial court’s attention. This is because the rule was intended not only to allow
appellate courts to correct errors not objected to at trial, but also to allow them to correct errors
not raised on appeal. The 1944 advisory committee note thus describes the rule as a “restatement
of existing law” and cites former Supreme Court Rule 27, which “provide[d] that errors not
specified will be disregarded, ‘save as the court, at its option, may notice a plain error not
assigned or specified.’” The Supreme Court has also noted that Rule 52(b) “codified” the plain
error “standard laid down in United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392, 80
L. Ed. 555 (1936).” United States v. Young, 470 U.S. 1, 6-7, 105 S. Ct. 1038, 1042, 84 L. Ed. 2d
1 (1985). Atkinson held that, “[i]n exceptional circumstances, especially in criminal cases,
appellate courts, in the public interest, may, of their own motion, notice errors to which no
exception has been taken.” 297 U.S. at 160, 56 S. Ct. at 392. Thus, Rule 52(b) does not
distinguish between trial-level and appellate-level forfeitures; rather, the crucial issue is whether
the claim was waived or only forfeited. See Olano, 507 U.S. at 732-34, 113 S. Ct. at 1777.
9
Levy’s first brief was filed on May 21, 2002. The Supreme Court granted certiorari in
Blakely on October 20, 2003. Blakely v. Washington, __ U.S. __, 124 S. Ct. 429, 157 L. Ed. 2d
309 (2003).
35
existed when Levy filed his brief.10 Unsurprisingly, none of the authorities the
Olano Court cited to explain the critical distinction between waiver and
forfeiture11 articulates that distinction in a manner that supports classifying Levy’s
unknowing omission as a waiver. Olano, 507 U.S. at 733, 113 S. Ct. at 1777.12
10
I realize that we regularly refer to a failure to brief an issue as a “waived.” See, e.g., United
States v. Veltman, 6 F.3d 1483, 1493 (11th Cir. 1993). In a typical criminal appeal—i.e., when a
defendant’s claim is not based on a new rule announced by a decision that postdates his initial
brief—this is the correct terminology. Thus, a defendant whose lawyer fails to raise a claim
based on a case decided before the defendant’s brief is filed can be said to have “waived” the
claim (and thus the right to have the decision retroactively applied in his case). Such a defendant
would be relegated to bringing an ineffective assistance claim rather than one based directly on
the intervening decision. But as explained in this Part and recognized by the other courts of
appeals that have addressed the issue, cases such as Levy’s are different because a defendant
cannot intentionally relinquish a right that has not yet evolved.
11
See, e.g., Freytag v. Comm’r, 501 U.S. 868, 894 n.2, 111 S. Ct. 2631, 2647 n.2, 115 L. Ed.
2d 764 (1991) (Scalia, J., concurring in part and concurring in judgment) (“Waiver, the
intentional relinquishment or abandonment of a known right or privilege, is merely one means by
which a forfeiture may occur. Some rights may be forfeited by means short of waiver, but others
may not. A right that cannot be waived cannot be forfeited by other means (at least in the same
proceeding), but the converse is not true. In this case, petitioners expressly consented to the
Special Trial Judge’s role. As far as my analysis is concerned, however, it would not matter if an
even more inadvertent forfeiture were involved—that is, if petitioners had not even consented but
had merely failed to object in timely fashion.” (citations and quotation marks omitted)); Ralph S.
Spritzer, Criminal Waiver, Procedural Default and the Burger Court, 126 U. Pa. L. Rev. 473, 475
(1978) (“first, he who ‘waives’ must have a minimal degree of personal awareness (how much
will depend on the context) of what is being relinquished; second, the relinquishment must be a
matter of personal choice”); Peter Westen, Away from Waiver: A Rationale for the Forfeiture of
Constitutional Rights in Criminal Procedure, 75 Mich. L. Rev. 1214, 1214-15 (1977) (“The
significant difference between waiver and forfeiture is that a defendant can forfeit his defenses
without ever having made a deliberate, informed decision to relinquish them . . . . Unlike waiver,
forfeiture occurs by operation of law without regard to the defendant's state of mind.”).
12
Levy’s Blakely claim asserts a violation of his Sixth Amendment right to a trial by jury on
his federal sentencing enhancements. A valid waiver of the right to a jury trial requires a
defendant’s “express, intelligent consent” and must be “approved by the responsible judgment of
the trial court.” Adams v. United States ex rel. McCann, 317 U.S. 269, 277, 63 S. Ct. 236, 241,
87 L. Ed. 268 (1942). Indeed, under Federal Rule of Criminal Procedure 23(a), “[i]f the
36
On this point, our court is undeniably in conflict with several other ciruits.
For example, in United States v. Rogers, 118 F.3d 466, 471 (6th Cir. 1997), the
Sixth Circuit rejected the Government’s argument that the defendant had “waived”
a claim based on a then-recent Supreme Court decision by failing to object at trial
or advance the claim in his initial brief. The court’s reasoning was simple: “[o]f
course, [the defendant] could not have knowingly waived a constitutional right
that evolved after he filed his appellate brief because raising the issue would have
been futile in light of then-applicable precedent.” Id. Similarly, in a case in which
“Apprendi was decided after briefing and one of the defendants refer[red] [the
court] to the new decision in his post-argument brief,” the Fifth Circuit concluded
that it was “not completely accurate to characterize the issue as waived or
abandoned” and thus considered the claim under the plain error standard. United
States v. Miranda, 248 F.3d 434, 444 (5th Cir. 2001). And finally, in a recent case
that was briefed and argued pre-Blakely, the Seventh Circuit reasoned that
“[g]iven the precedent in this circuit prior to Blakely, we think it would be unfair
to characterize [the defendant] as having waived a challenge to the validity of her
sentencing enhancement.” United States v. Pree, 384 F.3d 378, 396 (7th Cir.
defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a
jury trial in writing; (2) the government consents; and (3) the court approves.”
37
2004); accord United States v. Henningsen, 387 F.3d 585, 591 (7th Cir. 2004).
Indeed, the court raised the issue sua sponte and concluded that there had been no
waiver notwithstanding the defendant’s failure to raise the Blakely issue in any
sort of post-Blakely submission. Pree, 384 F.3d at 396-97.
In addition to these cases, it appears that every other circuit is willing to
consider claims like Levy’s despite the ordinary rule that issues not briefed are
deemed waived. See infra Part III. Although other circuits have not addressed the
waiver/forfeiture distinction directly, the fact that these courts have considered the
merits of such claims does seem to imply agreement with the reasoning of the
Fifth, Sixth, and Seventh Circuits. Indeed, that such claims are cognizable under
Rule 52(b) notwithstanding a defendant’s failure to include them in his initial brief
may have been thought so obvious as to not merit discussion.
III.
The panel opinion in this case contends that “our practice” of refusing to
consider claims like Levy’s is “longstanding.” Levy, 379 F.3d at 1244. This
simply is not the case. While the panel does catalogue a litany of cases in which
we refused to consider claims not raised in initial briefs, it cites no pre-Apprendi
case in which we refused to consider a claim based on a new rule announced after
a criminal defendant filed his first brief. In other words, while in the ordinary case
38
it is our longstanding practice to consider only claims actually presented in initial
briefs, our refusal to consider the merits of claims such as Levy’s is a recent
phenomenon. Indeed, the practice dates back less than four years to Ardley.13
13
The only pre-Ardley case the panel cites that is even arguably on point is McGinnis v.
Ingram Equip. Co., 918 F.2d 1491 (11th Cir. 1990) (en banc), in which we held that a civil
defendant waived its right to argue that discriminatory demotion and discharge were not
actionable under 42 U.S.C. § 1981 by failing to make the argument at trial or in its initial brief,
even though the Supreme Court case that established this new rule was not decided until after the
defendant’s brief was filed. As we have recognized, however, “criminal cases [are] a realm
which is wholly distinct (as far as retroactivity is concerned) from civil cases.” McKinney v.
Pate, 20 F.3d 1550, 1566 (11th Cir. 1994) (en banc). Therefore, while the issues-not-briefed-are-
waived rule may limit retroactivity in civil cases, see James B. Beam Distilling Co. v. Georgia,
501 U.S. 529, 544, 111 S. Ct. 2439, 2448, 115 L. Ed. 2d 481 (1991) (Souter, J.) (“when the Court
has applied a rule of law to the litigants in one case it must do so with respect to all others not
barred by procedural requirements or res judicata” (emphasis added)), the Court has never
suggested as much in the criminal context.
Moreover, while Rule 52(b) provides an explicit exception to the contemporaneous
objection rule in criminal cases, there is no similar exception that is directly applicable in civil
cases. Therefore, although we have held that the rule applies by analogy so that in exceptional
circumstances we may notice plain error in civil cases, see, e.g., S.E.C. v. Diversified Corporate
Consulting Group, 378 F.3d 1219, 1227 n.14 (11th Cir. 2004), we have also reasoned that its
scope is significantly narrower in that context, see, e.g., id.; Maiz v. Virani, 253 F.3d 641, 676-77
(11th Cir. 2001); Oxford Furniture Cos., v. Drexel Heritage Furnishings, Inc., 984 F.2d 1118,
1128 (11th Cir. 1993); see also Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8, 15 (1st Cir.
1999) (noting that the requirements of the plain error rule are applied “even more stringently” in
civil cases); Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F.3d 1269, 1289 (3d Cir.
1995) (“If anything, the plain error power in the civil context—which is judicially rather than
statutorily created—should be used even more sparingly.”). Additionally, it is not even clear that
plain error review could have helped the defendant in McGinnis. Johnson v. United States, 520
U.S. 461, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (discussed in Part IV, infra), which clarified that
“where the law at the time of trial was settled and clearly contrary to the law at the time of
appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration,” id. at 468,
117 S. Ct. at 1549, was decided seven years after McGinnis. Thus, when McGinnis was decided,
it was not clear that a litigant—in either a civil or a criminal case—in the position of the
defendant in that case could ever benefit from a favorable intervening decision even if the court
were to address the newly raised claim on the merits. See Olano, 507 U.S. at 734, 113 S. Ct. at
1777 (“We need not consider the special case where the error was unclear at the time of trial but
becomes clear on appeal because the applicable law has been clarified.”); United States v.
Vazquez, 53 F.3d 1216, 1222 n.6 (11th Cir. 1995) (noting a circuit split as to whether the error
39
Prior to Ardley, we addressed the merits of claims like Levy’s on several
occasions. See, e.g., United States v. Candelario, 240 F.3d 1300, 1311 (11th Cir.
2001) (“[Defendant] did not raise a constitutional objection on Apprendi grounds
until he filed a petition for rehearing and suggestion for rehearing en banc . . . . We
therefore may only review the claim for plain error.”); United States v. Calhoon,
97 F.3d 518, 529 (11th Cir. 1996) (reviewing for plain error a claim based on the
then-recent decision in United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310,
132 L. Ed. 2d 444 (1995), that was first raised in the defendant’s reply brief).
The panel dismisses these pre-Ardley cases because, among other things,
they “do not mention, much less discuss, . . . any of the binding, prior panel
precedents, which preclude the raising of new issues in rehearing petitions and in
supplemental and reply briefs” or “discuss or cite any authority for considering the
merits of new issues not raised in an appellant’s initial brief.” Levy, 379 F.3d at
1245. As explained just above, however, the cases to which the panel refers were
not in fact “binding, prior panel precedents” because they do not concern new
rules for the conduct of criminal prosecutions made retroactively applicable by
must be plain at trial and declining to answer that question). Indeed, because Johnson interpreted
the Federal Rules of Criminal Procedure, it is still not clear that it applies in civil cases.
In short, McGinnis does not support Ardley or the result here because criminal and civil
retroactivity are “wholly distinct” issues, and because plain error review is significantly narrower
in civil cases and may not be available at all in a case like McGinnis.
40
Griffith. Thus, because these cases were (and are) not on point, there was no
reason for the panels in cases such as Candelario or Calhoon to have discussed
them. Moreover, because the defendants in those cases had not “waived” Griffith
retroactivity or plain error review under Rule 52(b), see supra Parts I-II, there was
also no need for those panels to “cite any authority for considering the merits of”
their claims—indeed, because the defendants’ claims were not precluded, those
panels would have needed to locate authority only if they had decided not to
consider the claims.
In other circuits, the law is consistent with our own pre-Ardley cases—that
is, courts consider claims like Levy’s as a matter of course. Indeed, in the
aftermath of Blakely, such cases can be found on a nearly daily basis. Following
Apprendi, a number of courts faced this precise issue, and all (except for this
court14) reached the merits of claims like Levy’s.15 The same has been true post-
14
See supra note 3.
15
United States v. Clinton, 256 F.3d 311, 313 (5th Cir. 2001) (on remand from the Supreme
Court, reviewing for plain error an Apprendi claims not raised in the district court or in the
defendant’s initial appeal); United States v. Delgado, 256 F.3d 264, 280 (5th Cir. 2001)
(reviewing for plain error Apprendi claim first made in a supplemental brief after the defendant
failed to object at sentencing or raise the issue in his initial brief); United States v. Cernobyl, 255
F.3d 1215, 1216, 1218 (10th Cir. 2001) (same); United States v. Miranda, 248 F.3d 434, 443-44
(5th Cir. 2001) (same); United States v. Garcia, 242 F.3d 593, 599 & n.5 (5th Cir. 2001) (same);
United States v. Terry, 240 F.3d 65, 72-73 (1st Cir. 2001) (same); United States v. White, 238
F.3d 537, 541 (4th Cir. 2001) (same); United States v. Mietus, 237 F.3d 866, 875 (7th Cir. 2001)
(same); United States v. Poulack, 236 F.3d 932, 935-37 (8th Cir. 2001) (same); see also People
v. Lathon, 740 N.E. 2d 377, 380 (Ill. App. Ct. 2000) (“The State argues that defendant has
41
Blakely.16
waived any challenge to the constitutionality of his sentence . . . . The defense [relies on Griffith
v. Kentucky]. Defendant’s case was pending on direct review when Apprendi was decided. The
Apprendi opinion was issued by the United States Supreme Court the same day the original order
in this case was issued and therefore Apprendi was properly raised by defendant in the petition
for rehearing.”). As I acknowledged in my dissent from the denial of rehearing en banc in
Ardley, the First Circuit’s position was not especially well-defined post-Apprendi. See Ardley,
273 F.3d at 1001 n.13. In Terry, supra, the court analyzed an Apprendi claim under the plain
error standard even though the defendant had not raised the issue at trial or in his initial brief.
But in United States v. Padro Burgos, 239 F.3d 72, 77 n.3 (1st Cir. 2001), the court denied the
defendant’s motion to raise an Apprendi claim in a supplemental brief “without prejudice to his
right to raise Apprendi by way of an application for collateral relief in the event his direct appeal
failed.” The First Circuit’s post-Blakely pronouncements on this question, however, seem to
clarify that a claim like Levy’s is not waived simply because it is not raised in the defendant’s
initial brief. See, e.g., United States v. Cordoza-Estrada, 385 F.3d 56, 59 (1st Cir. 2004) (“Since
Appellant’s argument depends upon a decision that did not exist at the time of briefing, a [Rule
28(j) letter filed the day before oral argument] is a perfectly appropriate avenue by which to
present it . . . .”).
16
See, e.g., United States v. Glenn, __ F.3d__, 2004 WL 2676766, at *4 (1st Cir. Nov. 24,
2004) (reviewing for plain error a Blakely claim first raised in a supplemental brief); United
States v. Stearns, 387 F.3d 104, 106-07 (1st Cir. 2004) (reviewing for plain error a Blakely claim
first raised in a post-oral argument letter); United States v. Satterfield, 2004 WL 2491574, at *1
(4th Cir. Nov. 5, 2004) (unpublished op.) (reviewing for plain error Blakely claim first raised in a
supplemental brief); Henningsen, 387 F.3d at 591 (“Although [the defendant] did not raise the
[Blakely] issue . . . in his brief, he made notice of the Blakely and Booker decisions in a
subsequent filing and raised the issue during argument. In light of the uncertainty surrounding
this issue and the questionable constitutionality of [his] sentencing enhancement, we do not find
that [he] has waived his [claim].”); United States v. Griffith, 385 F.3d 124, 127 (2d Cir. 2004)
(ordering that, notwithstanding the defendant’s failure to raise a Blakely-type claim in his initial
brief, “the mandate in this case will be held pending the Supreme Court’s decision in Booker and
Fanfan” and that “the parties will have until 14 days following the Supreme Court’s decision to
file supplemental petitions for rehearing”); United States v. Moore, 109 Fed. Appx. 503, 505 n.2,
2004 WL 2241169, at *2 n.2 (3d Cir. 2004) (unpublished op.) (noting that a Blakely claim that
was first raised in a supplemental brief would be reviewed for plain error but declining to grant
the defendant’s motion to file such a brief because it was clear that he could not establish plain
error); United States v. Cordoza-Estrada, 385 F.3d 56, 59 (1st Cir. 2004) (reviewing for plain
error a Blakely claim first raised in a Rule 28(j) letter sent to the court the day before oral
argument and noting that “[s]ince Appellant’s argument depends upon a decision that did not
exist at the time of briefing, a 28(j) letter is a perfectly appropriate avenue by which to present
it”); Pree, 384 F.3d at 396-97 (raising Blakely issue sua sponte); United States v. Pepsny, 108
Fed. Appx. 713, 716-17, 2004 WL 1873996, at *3 (3d Cir. 2004) (unpublished op.) (remanding
42
for re-sentencing on non-Blakely grounds and stating that a defendant who first raised a Blakely
claim in a post-argument filing could attempt to raise the Blakely issue on remand); United States
v. Musleh, 106 Fed. Appx. 850, 857 n.4, 2004 WL 1858247, at *5 n.4 (4th Cir. 2004)
(unpublished op.) (“The Supreme Court issued its decision in [Blakely], shortly after we heard
oral argument in this case. [Although the defendant had not raised a Blakely-type claim, we]
then sua sponte ordered the parties to submit supplemental briefing respecting the effect of
Blakely on the Federal Sentencing Guidelines.”); United States v. Badilla, 383 F.3d 1137, 1142
n.2 (10th Cir. 2004) (reviewing for plain error a Blakely claim that was first raised in a motion
for post-submission consideration); United States v. Westover, 107 Fed. Appx. 840, 847, 2004
WL 1790016, at *6 (10th Cir. 2004) (rejecting all claims raised in the defendant’s brief but
retaining jurisdiction and permitting a supplemental “brief to raise additional issues in light of
Blakely,” which was “decided after initial briefing and argument”); United States v. Ameline,
376 F.3d 967, 974 (9th Cir. 2004) (“Our precedent provides ample support for our authority to
consider sua sponte a [Blakely] claim that was not initially raised on appeal.”).
In one unpublished decision, the Tenth Circuit refused to consider a Blakely claim raised
in a letter submitted to the court pursuant to Federal Rule of Appellate Procedure 28(j), citing
Levy. United States v. Rosales, 2004 WL 2307370, at *6 (10th Cir. Oct. 14, 2004). In other
cases, that court has declined to consider Blakely claims raised in Rule 28(j) letters “because [the
defendant] did not ask to file a brief raising a proper Blakely challenge.” United States v.
Maldonado-Ramires, 384 F.3d 1228, 1230 n.1 (10th Cir. 2004); see, e.g., United States v. Horn,
2004 WL 2407131, at *2 (10th Cir. Oct. 28, 2004) (unpublished op.). While at first glance these
cases might appear to conflict with the Tenth Circuit’s decisions in Westover and Badilla, noted
above, the more likely explanation is that the court was holding only that a Rule 28(j) letter is not
a proper vehicle for raising a new argument—i.e., Rule 28(j) letters should be used only to
identify new authority relating to arguments already raised—and that the defendant waived his
right to raise a Blakely claim by not properly seeking permission to file a supplemental brief.
Indeed, in one case the court specifically cited Badilla for the proposition that plain error review
would apply if the defendant had properly raised the issue in a brief. Maldonado-Ramires, 384
F.3d at 1230 n.1. And in other cases, the court relied on United States v. Kimler, 335 F.3d 1132,
1138 n. 6 (10th Cir.2003), which states: “We will not address issues not raised in the appellant’s
opening brief, especially where the arguments are based on authority that was readily available at
the time of briefing.” See, e.g., Horn, at *2. Moreover, as noted in note 15, supra, the Tenth
Circuit considered Apprendi-based claims under similar circumstances. See Cernobyl, 255 F.3d
at 1216, 1218 (reviewing for plain error Apprendi claim first raised in a supplemental brief after
the defendant failed to object at sentencing or raise the issue in his initial brief). Thus, taken
together, these cases suggest that the Tenth Circuit will consider claims such as Levy’s as long as
the defendant properly seeks to raise them in a supplemental brief.
Similarly, in an unpublished opinion, an Eighth Circuit panel without any explanation
denied a motion to file a supplemental brief in light of Blakely. United States v. Castillo-
Torrecilla, 111 Fed. Appx. 444, 445, 2004 WL 2341791, at *1 (8th Cir. 2004). This decision,
however, appears to conflict with that court’s administrative order regarding Blakely cases and
recent published decisions, which suggest that the Eighth Circuit will hold the mandate in all
43
Blakely cases and consider Blakely claims after Booker and Fanfan are decided. See, e.g.,
Administrative Order Regarding Blakely Cases (8th Cir. Sept. 27, 2004), at
http://www.ca8.uscourts.gov/files/blakelyfinal.pdf; United States v. Babiar, __ F.3d __ 2004 WL
2694882, at *1 n.2 (8th Cir. Nov. 29, 2004); United States v. Pierce, __ F.3d __, 2004 WL
2520499, at n.2 (8th Cir. Nov. 9, 2004); see also United States v. Pirani, 2004 U.S. App. LEXIS
16117, at *21-36 (8th Cir. Aug. 5, 2004) (reviewing for plain error Blakely claim first raised after
oral argument), op. vacated and reh’g en banc granted, 2004 U.S. App. LEXIS 17012 (8th Cir.
Aug. 16, 2004); United States v. Poulack, 236 F.3d 932, 935-37 (8th Cir. 2001) (reviewing for
plain error Apprendi claim first made in a supplemental brief after the defendant failed to object
at sentencing or raise the issue in his initial brief). In another recent Eighth Circuit case, a
defendant argued that he should be allowed to raise a Blakely claim for the first time in his reply
brief because “(1) Blakely was decided ‘shortly after the drafting of [his] appeal had begun,’ and
(2) ‘the decision was unknown to . . . counsel and was consequently left out of the brief.’”
United States v. Ceballos, 2004 WL 2676446, at *2 (8th Cir. Nov. 23, 2004) (unpublished op.).
The panel rejected this argument, stating that these were “inadequate justifications since [the
defendant’s opening] brief was not filed until July 23, 2004—almost a month after the Blakely
decision was released.” Id. In accordance with the court’s administrative order, however, the
panel stayed the mandate pending resolution of Booker and Fanfan; it explained that “in this
unusual circumstance, [the defendant’s] mandate will be stayed despite his failure to raise this
issue in his opening brief.” Id. at *2 n.1. I take the panel’s discussion of the issue to suggest that
it would have considered the Blakely issue properly raised if the defendant’s opening brief had
been filed before, rather than “almost a month after,” Blakely was decided.
So far as I can tell, state appellate courts are also considering the merits of claims like
Levy’s. See, e.g., State v. Miranda-Cabrera, 99 P.3d 35, __ (Ariz. Ct. App. 2004) (“[T]he State
argues that [the defendant] waived any claim he might have to resentencing pursuant to . . .
Blakely by failing to raise it at the sentencing hearing or in his opening brief. . . . Decisions of the
United States Supreme Court that create new rules apply to all criminal cases still pending on
direct review. Griffith v. Kentucky. Because [the defendant’s] case is still pending on direct
review, we will consider the application of the rule set forth in Blakely to the sentencing in his
case.” (citations omitted)); People v. Barnes, 19 Cal. Rptr. 3d 229, 243 (Ct. App. 2004) (noting
that United States v. Curtis, 380 F.3d 1308 (11th Cir. 2004) “found a Blakely waiver based on
the defendant’s failure to raise the issue until supplemental briefing on appeal,” but concluding
that the “rule applied in that case appears stricter than California’s rule” and thus considering a
Blakely claim first raised in a supplemental brief); People v. Wilson, 2004 WL 2677090, at *1
(Cal. Ct. App.) (unpublished op.) (considering Blakely claim first raised in a petition for
rehearing); Krebs v. State, 816 N.E. 2d 469, 474-75 (Ind. Ct. App. 2004) (“we evaluate sua
sponte the constitutionality of [the defendant’s] sentence under the United States Supreme
Court’s recent decision in Blakely v. Washington”); State v. Conger, 687 N.W. 2d 639 (Minn.
Ct. App. 2004) (considering Blakely claim first raised in a supplemental brief); State v. King,
858 A.2d 4, 13-14 (N.J. Super. Ct. App. Div. 2004) (same); State v. Murrin, 2004 WL 2677454,
at *3-4 (Ohio Ct. App. Nov. 24, 2004) (considering Blakely issue sua sponte after the defendant
challenged only the trial court’s application of Ohio’s sentencing guidelines); State v. Shaw,
44
The clearest statements in these post-Blakely cases have come from the
Seventh Circuit in United States v. Pree, see supra Part II, and from the Ninth
Circuit in United States v. Ameline, 376 F.3d 967 (9th Cir. 2004). In Ameline,
even though the defendant “made no challenge to the applicable standard of proof
or to the judge’s factfinding authority,” the Ninth Circuit held “that the Sixth
Amendment implications of Blakely allow[ed] [the court] to examine sua sponte
its potential impact on [the defendant’s] sentence.” Id. at 974. Thus, while the
Seventh and Ninth Circuits have raised the Blakely issue sua sponte, we have
refused to consider even claims raised in supplemental briefs filed shortly after
Blakely was decided. And while Pree, Ameline, and the decisions of the Fifth and
Sixth Circuits discussed in Part II, supra, are perhaps the clearest discussions of
this issue, the cases cited in notes 15 and 16, supra, demonstrate that this court is
truly a minority of one on this issue. Indeed, the eleven other federal circuits that
have been presented with claims like Levy’s have all considered the merits of
2004 WL 2191044, at *8 (Tenn. Crim. App. Sept. 28, 2004) (unpublished op.) (rejecting the
State’s argument “that the defendant waived the [Blakely] issue by failing to raise it in his
original brief”). But see People v. Abeyta, 2004 WL 2320090, at *4 (Cal. Ct. App. Oct. 15,
2004) (unpublished op.) (2-1 decision) (“[Defendant’s Blakely claim] was not asserted in the trial
court. Therefore, all of defendant’s Blakely based federal constitutional contentions have been
forfeited.”)
45
those claims.17 I thus do not understand how this court can continue to reject the
sound reasoning of our sister circuits without any sort of explanation or even an
acknowledgment of those cases.
IV.
A final reason for rejecting the rule established in Ardley and followed here
is that it sends a clear message to appellate counsel that they should brief any
claim that passes the laugh test regardless of whether it has any support in, or is
even squarely foreclosed by, our own precedent. Here, for example, by failing to
raise a claim we had already flatly rejected, Levy’s counsel cost his client the
17
The cases discussed in Part II and cited in notes 15 and 16, supra, cover the First through
Tenth Circuits. In addition, in United States v. Byers, 740 F.2d 1104 (D.C. Cir. 1984), then-
Judge Scalia wrote:
Neither at trial nor on appeal did appellant raise this Sixth Amendment
claim. Appellant concedes that it was asserted for the first time (by new counsel)
in his Petition for Rehearing and Suggestion for Rehearing En Banc. Appellees
argue that we are therefore precluded from considering it. It is true as a general
rule that appellate courts will not consider questions raised for the first time on
appeal. However, we are “bound to consider any change, either in fact or in law,
which has supervened since the judgment [from which appeal is taken] was
entered,” Patterson v. Alabama, 294 U.S. 600, 607, 55 S. Ct. 575, 578, 79 L. Ed.
1082 (1935). We think that the Supreme Court’s decision in Estelle v. Smith,
[451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981),] handed down during
our consideration of [appellant’s] Petition for Rehearing, which elevated
[appellant’s] Sixth Amendment claim from completely untenable to plausible,
invokes this limited exception.
Id. at 1115 n.11 (Scalia, J.) (citations omitted). Although Judge Scalia wrote for only six of
twelve participating judges, Judge Bazelon’s dissent, joined by Judges Wald and Mikva, agreed
that the Sixth Amendment claim was properly before the court for the same reasons. See id. at
1161 n.138. The D.C. Circuit’s reasoning is particularly apt here given that Blakely similarly
“elevated [Levy’s claim] from completely untenable,” see Sanchez, 269 F.3d at 1262, “to
plausible.”
46
benefit of the new rule announced in Blakely. Thus, in addition to being
inconsistent with Griffith, Olano, and the law of every other circuit, the Ardley-
Levy rule is also quite simply an imprudent exercise of the prudential rule that
issues not briefed are deemed waived. See Miranda, 248 F.3d at 443 (“[T]he
issues-not-briefed-are-waived rule is a prudential construct that requires the
exercise of discretion.”).
When faced with a similar case in Johnson v. United States, the Supreme
Court opted for a path that would avoid “counsel’s inevitably making a long and
virtually useless laundry list of objections to rulings that were plainly supported by
existing precedent.” 520 U.S. 461, 468, 117 S. Ct. 1544, 1549, 137 L. Ed. 2d 718.
In Johnson, as here, the defendant sought to raise a claim on appeal that was
squarely foreclosed by precedent at the time of trial (and thus was not raised then)
but was viable by the time of appeal due to an intervening Supreme Court
decision. The difference between Johnson and Levy’s case is that the intervening
decision in Johnson was issued in time for the defendant to raise the claim in his
first appellate brief, and the question before the Court was whether for Rule 52(b)
purposes error must be “plain” as of the time of trial or only as of the time of
appeal. The Court held that “where the law at the time of trial was settled and
clearly contrary to the law at the time of appeal[,] it is enough that an error be
47
‘plain’ at the time of appellate consideration.” Id. The Court’s rationale was
simple: it reasoned that if it interpreted Rule 52(b) to require that error be “plain”
as of the time of trial, trial counsel would interpose numerous baseless objections
to rulings that were clearly correct under prevailing law in order to avoid forfeiting
the benefit of Griffith retroactivity for claims based on favorable intervening
decisions. In Ardley and again here, however, this court has taken a position that
encourages precisely such a “laundry list” of appellate arguments, thereby opting
for needless waste of legal resources.
Because I find the parallel between Johnson and the instant case particularly
compelling, I will try to state it as clearly as possible: “The narrowness of the plain
error rule is a reflection of the importance, indeed necessity, of the
contemporaneous objection rule to which it is an exception. The contemporaneous
objection rule fosters finality of judgment and deters ‘sandbagging’ . . . .” United
States v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998). It “also promotes the
salutary interest of making the trial the main event”; in short, it “is essential to the
integrity and efficiency of our judicial process.” Id. Similarly, the purpose of the
issues-not-briefed-are-waived rule—and Federal Rule of Appellate Procedure 28
48
in general18—“is to conserve the time and energy of the court and clearly to advise
the opposite party of the points he is obliged to meet.” Thys Co. v. Anglo Cal.
Nat’l Bank, 219 F.2d 131, 133 (9th Cir. 1955). Thus, both the contemporaneous
objection rule and the issues-not-briefed-are-waived rule are intended to ensure
the integrity of the adversary process and conserve legal resources. Johnson
adopted a broader interpretation of the plain error exception in order to avoid
useless objections that would inevitably undermine the very purposes the
contemporaneous objection rule serves. Faced with the same problem, however,
the panel opinion inflexibly applies the prudential issues-not-briefed-are-waived
rule in a way that undermines the very purposes it serves.
Finally, I do not see how Ardley and Levy can be squared with our advice to
counsel in United States v. Battle, 163 F.3d 1 (11th Cir. 1998):
Even in a death-penalty case, the court expects counsel to be
highly selective about the issues to be argued on appeal . . . .
....
The Supreme Court of the United States has . . . stressed . . .
that the best advocacy relies on selectivity. It is well settled that
counsel need not “raise every ‘colorable’ claim” on appeal. . . . And,
18
See Levy, 379 F.3d at 1244:
To allow a new issue to be raised in a petition for rehearing, or a supplemental
brief, or a reply brief circumvents Federal Rule of Appellate Procedure 28(a)(5),
which requires than an appellant’s initial brief must contain “a statement of the
issues presented for review.” While some of our decisions refusing to consider
new issues in reply, supplemental, or rehearing briefs have mentioned this rule or
its predecessor, others have not.
49
the former Chief Judge of this circuit, John C. Godbold, has given
this advice: “[C]ounsel must select with dispassionate and detached
mind the issues that common sense and experience tell him are likely
to be dispositive. He must reject other issues or give them short
treatment.”
Id. at 1-2 (citations omitted). Certainly, we cannot continue to give such advice
after Ardley and Levy. Levy’s counsel heeded our advice—indeed, he did not
have to resort to “common sense and experience” to determine that a Blakely-type
claim was not likely to succeed because we had already specifically rejected that
claim in Sanchez. But by holding that Griffith only applies if counsel anticipates
the new rule and raises a similar claim in the defendant’s first brief, we are
essentially telling counsel that they should “raise every colorable claim on appeal”
and that if they are too “highly selective about the issues to be argued on appeal”
they may do great injury to their clients. As a result, I would expect counsel to
raise more claims on appeal, including claims squarely foreclosed by our own
precedent, and that the arguments supporting those claims will necessarily be less
clear and specific. Such kitchen-sink briefs will, of course, make this court’s work
more difficult and waste judicial resources, not to mention counsel’s own time.
Thus, even if the Ardley-Levy rule were not in conflict with Griffith, Olano, and
the law of every other circuit, I would still dissent from the court’s refusal to
rehear this case en banc simply because the rule will do great harm to the fair and
50
efficient administration of justice in this circuit.
V.
To recap, I dissent from the denial of rehearing en banc for four primary
reasons. First and foremost, the rule announced in Ardley and followed here
unjustifiably limits the clear holding of Griffith v. Kentucky 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.” 479 U.S. at 328, 107 S. Ct. at 716
(emphasis added). Because there is no dispute that Levy’s case is still “pending
on direct review” and is “not yet final,” Griffith’s constitutional rule necessarily
trumps the strictly prudential rule that issues not briefed are deemed waived.
Second, the panel’s conclusion that Levy “waived” his Blakely claim is
inconsistent with Olano’s distinction between “waiver” and “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.’” Olano, 507 U.S. at
733, 113 S. Ct. at 1777 (quoting Johnson, 304 U.S. at 464, 58 S. Ct. at 1023).
This distinction is crucial, for “[m]ere forfeiture, as opposed to waiver, does not
extinguish an ‘error’ under Rule 52(b),” id. (emphasis added), or, for that matter,
justify limiting retroactivity under Griffith, see supra note 7. When Levy’s first
brief was filed, the Supreme Court had not even granted certiorari in Blakely, and
51
we had squarely rejected the very claim the panel now faults him for omitting. As
such, there was no “known right” for Levy to have “intentionally relinquished,”
and his omission is a clear example of a “forfeiture,” not a “waiver.”
Third, the panel’s opinion continues a circuit split that finds this court
standing alone. Indeed, whereas we have been anxious to find untimely Blakely
claims “waived,” see supra note 2, the Seventh and Ninth Circuits have, in well-
reasoned opinions, raised Blakely issues sua sponte. Of course, inconsistency
with other circuits does not by itself prove that we have adopted the incorrect
view. But I do not understand how we can continue to ignore the numerous cases
considering claims such as Levy’s, particularly given that our disagreement with
those cases is a relatively recent development and not a “longstanding practice.”
Finally, the position we have adopted will result in “counsel’s inevitably
making a long and virtually useless laundry list” of appellate arguments that are
plainly unsupported, or even foreclosed, by precedent. It also goes directly against
our previous advice that we “expect[] counsel to be highly selective about the
issues to be argued on appeal” and “that counsel need not raise every ‘colorable’
claim.” Battle, 163 F.3d at 1-2 (internal quotation marks omitted). As such, in
addition to being inconsistent with Supreme Court precedent, Ardley and progeny
are quite simply an imprudent exercise of a prudential rule.
52
For these reasons, I continue to disagree with the rule adopted in Ardley and
followed here. I therefore dissent from the denial of rehearing en banc.
53
BARKETT, Circuit Judge, dissenting from the denial of rehearing en banc:
The panel decision in this case holds that a defendant may not raise Blakely
v. Washington, 124 S.Ct. 2531 (2004) on direct review unless it was raised in the
initial appellate brief.1 Levy says that if it was not raised in the initial brief, the
issue has been “waived.” I do not see how we can fairly or legally preclude
litigants from making Blakely arguments in their post-initial submissions in light
of two extraordinarily significant facts, amplified below. First, waiver applies
only to those situations where a defendant could have raised an issue in his initial
brief but failed to do so. Levy could not have raised a Sixth Amendment objection
to his sentencing because in United States v. Sanchez, 269 F.3d 1250, 1262 (11th
Cir. 2001), three years before Blakely was handed down, we held that Apprendi
does not apply to the Federal Sentencing Guidelines. This differentiates the
instant case from our precedents in United States v. Nealy, 232 F.3d 825 (11th Cir.
2000) and United States v. Ardley, 242 F.3d 989 (11th Cir. 2001), on both of which
the Levy panel relies. Second, Griffith v. Kentucky, 479 U.S. 314 (1987), which
makes newly declared rules of criminal procedure applicable to all cases still
pending on direct review, dictates that Levy be given the opportunity to raise his
1
United States v. Levy, 379 F.3d 1241 (11th Cir. 2004). Although I agree, and joined a panel
in In re Dean, 375 F.3d 1287 (11th Cir. 2004) to hold, that Blakely does not apply retroactively to
a criminal case on collateral review, I think that a criminal case still pending on direct appeal – a
pipeline case – is an entirely different matter.
54
Blakely claims before this court.
I. Griffith Applies to All Pipeline Cases
The Supreme Court has held that “failure to apply a newly declared
constitutional rule to criminal cases pending on direct review violates basic norms
of constitutional adjudication.” Griffith, 479 U.S. at 322. The Griffith Court
stated that “after we have decided a new rule in the case selected, the integrity of
judicial review requires that we apply that rule to all similar cases pending on
direct review.” Id. at 322-23. In so holding, the Court made clear that it would
not harbor an exception to retroactivity for cases in which the new rule constituted
a “clear break” with the past. Id. at 328.
Our internal circuit rules for how and whether an issue can be raised on
appeal cannot override the concerns about fundamental fairness and the integrity
of judicial review that the Supreme Court identified in Griffith. If the “failure to
apply a newly declared constitutional rule to criminal cases pending on direct
review violates basic norms of constitutional adjudication,” id. at 322, surely that
failure would violate constitutional norms as much in the case of a defendant who
failed to raise a new rule of criminal procedure that was not available when he
filed his initial appellate brief as it would in the case of a defendant who did
anticipate the new rule.
55
It so happens that in Griffith, the defendant did manage to preserve his
Batson objections to the prosecutor’s use of peremptory challenges. But there is
no basis in Griffith or elsewhere to conclude that the decision applies only to
defendants who have preserved their constitutional challenges, whether during
trial, throughout direct review, or both. The Griffith Court granted certiorari to
answer the question “whether the ruling in Batson applies retroactively to a state
conviction pending on direct review at the time of the Batson decision.” Griffith,
479 U.S. at 318. Griffith neither posed nor answered the more limited question of
whether Batson applies retroactively only to a defendant who has preserved his
objection to a prosecutor’s peremptory challenges. Rather, summarizing its prior
case law, the Court observed that
in a number of separate opinions since Linkletter, various Members
of the Court have asserted that, at a minimum, all defendants whose
cases were still pending on direct appeal at the time of the law-
changing decision should be entitled to invoke the new rule.
Griffith, 479 U.S. at 322 (quoting United States v. Johnson, 457 U.S. 537, 545 and
n.9 (1982) (Harlan, J.) (internal quotations omitted) (emphasis added). The Court
distinguished not between defendants who preserved their Batson objections and
those who failed to, but rather between “cases that have become final and those
56
that have not.” Griffith, 479 U.S. at 322. The Griffith Court went on to hold that
[i]n Justice Harlan’s view, and now in ours, failure to apply a newly
declared constitutional rule to criminal cases pending on direct review
violates basic norms of constitutional adjudication. . . [A]fter we have
decided a new rule in the case selected, the integrity of judicial
review requires that we apply that rule to all similar cases pending on
direct review.
Id. at 322-23 (emphasis added).
There are no exceptions to the Griffith rule. It is true that prior to Griffith,
in Johnson, the Supreme Court acknowledged three exceptions to the rule of
retroactivity in the criminal procedure context. The first two were not at issue in
Griffith and are not at issue here.2 The third exception – where a new rule
constitutes a “clear break” with past precedent – was at issue in the line of
retroactivity cases leading up to Johnson and Griffith, but the Griffith Court
refused to leave any room for this exception. Instead, the Court reiterated the
absolute breadth of its holding:
2
The Griffith Court found that in the first two categories, “the new rule already was
retroactively applied: (1) when a decision of this Court did nothing more than apply settled
precedent to different factual situations . . . and (2) when the new ruling was that a trial court
lacked authority to convict a criminal defendant in the first place.” Griffith, 479 U.S. at 324
(emphasis added). Thus, these two categories cannot be used to say anything about Griffith, let
alone the instant case.
57
We therefore hold that 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, with no exception for cases
in which the new rule constitutes a ‘clear break’ with the past.
Id. at 328 (emphasis added). Any attempt to read into Griffith an unarticulated
fourth exception – for defendants who failed to preserve Batson (or Apprendi,
etc.) objections – is unconvincing.
II. Sanchez Foreclosed Levy’s Apprendi Claim
The panel’s refusal to apply the newly declared Blakely rule here is all the
less justified given that Levy’s “failure” to raise his Sixth Amendment right to a
jury trial to challenge his federal sentencing enhancements was dictated by this
very court. Prior to Blakely, this court, along with every other appellate court in
the nation, had held that Apprendi did not apply to the Federal Sentencing
Guidelines. See Sanchez, 269 F.3d at 1262 (“Apprendi does not apply to
judge-made determinations pursuant to the Sentencing Guidelines). See also
United States v. Nealy, 232 F.3d 825, 829 n. 3 (11th Cir.2000) ("The Sentencing
Guidelines are not subject to the Apprendi rule."); United States v. Harris, 244
F.3d 828, 829-30 (11th Cir.2001) (holding that Apprendi does not apply to the
58
relevant conduct provision of the Sentencing Guidelines); and United States v.
Diaz, 248 F.3d 1065, 1105 (11th Cir.2001) (noting that "Sentencing Guideline
issues are not subject to the Apprendi rule and, thus, there is no requirement that
sentencing facts be submitted to a jury and found beyond a reasonable doubt").3
Accordingly, how could we possibly consider “waived” an issue that we have
already decided?
Even though criminal defendants before Blakely would have had absolutely
no reason to raise Apprendi in connection with the Federal Guidelines (given our
holding in Sanchez), the panel penalizes defendants for not having the foresight to
predict Blakely:
[W]hile Levy may not have predicted the Supreme Court’s ultimate
conclusions in Blakely, it is also true that the general argument that a
jury must determine all facts regarding sentence enhancements was
available to Levy and indeed made by defendants ever since the
Sentencing Guidelines came into being.
Levy, 379 F.3d at 1243 . In fact, however, that “general argument” – which is
3
The unanimous agreement of our sister circuits on this point is documented in Justice
O’Connor’s dissenting opinion in Blakely. See Blakely v. Washington, 124 S.Ct. 2531, 2547 n.1
(2004).
59
more accurately described as the specific holding and very point of Blakely, albeit
not necessarily with reference to the Federal Guidelines – was not available to
Levy, because we took it away from him in Sanchez. The panel derived its
“general argument” argument from our decision in McGinnis v. Ingram Equipment
Company, 918 F.2d 1491 (11th Cir. 1990). In that case, we held that an employer
had waived its right to argue that discriminatory demotion and discharge were not
actionable under § 1981 by failing to raise those issues at trial, even though an
intervening Supreme Court decision (Patterson) that made those issues available
was not decided until after trial. But the panel neglects to address a cardinal
difference between McGinnis and the instant case: there was no equivalent of
Sanchez in McGinnis. The employer in McGinnis, that is, was not already on
notice prior to Patterson that it would be futile to attempt to argue before this court
that § 1981 did not extend to claims of discriminatory demotion and discharge.
The panel nonetheless argues that by not raising in their initial appellate
briefs a “Blakely-type claim” – a phrase that hardly captures the radicalism of
Blakely’s holding – defendants waive their right to invoke Blakely. But the panel
never clarifies exactly what it means by a “Blakely-type claim.” Had it done so,
the panel would have been forced to confront the practical significance of our
holding in Sanchez. Is a claim challenging the application of the Federal
60
Sentencing Guidelines in light of Apprendi a “Blakely-type claim”? If so, could
there be any reason why a defendant, after Sanchez, would see any reason to raise
Apprendi for this purpose before the Eleventh or any other Circuit? This is the
classic case of a catch-22: defendants can only raise Blakely if they have already
raised Apprendi, and yet this court (and every other circuit) said specifically that
they couldn’t have raised Apprendi!
If Levy could not have raised Apprendi in his initial appellate brief, in
accordance with our case law, I do not see how we can prevent him from raising
Blakely in a post-initial submission.4 To this consideration, I would add that
virtually every commentator in the land who has addressed Blakely, including
Justices O’Connor and Breyer in their dissents, has emphasized the dramatic
novelty of the decision and its potential to reshape the nation’s criminal law
system. See Blakely, 124 S.Ct. at 2548-49, 2562.
III. The Procedural Bar Rule Cannot Override Griffith
The panel opinion ignores both of the above points in favor of reciting the
4
One month after Levy was decided, this court held in United States v. Reese, 2004 WL
1946076 (11th Cir., Sept. 2, 2004), that Blakely does not apply to the Federal Guidelines. Levy
was thus decided at a time when the application of Blakely in this circuit was not yet clear. As
the Supreme Court, on October 4, 2004, has recently heard argument on this question, we will
soon know whether our ruling in Reese will hold up. The point here is that we cannot now
foreclose defendants from making a Blakely argument on direct appeal. Moreover, if we do not
now resolve the question of how to apply new constitutional rulings to pending direct appeals,
we will have to face this issue again when the Supreme Court clarifies Blakely.
61
various cases in which we have denied appellants the ability to raise new issues
not covered in their initial briefs on appeal. As noted above, the vast majority of
these cases did not involve a new rule of criminal procedure that the Supreme
Court announced after a defendant filed his initial appellate brief. The panel relies
on Nealy, however, for the proposition that supplemental briefs can be authorized
“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.” Levy, 379 F.3d at 1243
(summarizing Nealy, 232 F.3d at 830) (emphasis added).
As the panel notes, Nealy was based on Fed. R. App. P. 28(a)(5), which
requires an appellant’s initial brief to contain “a statement of the issues presented
for review.” The panel argues that to allow a new issue to be raised in a petition
for rehearing, supplemental brief, or reply brief would “circumvent” this rule. The
procedural bar rule of Nealy, however, does not serve as its own authority, but
derives its legitimacy from the extent to which it serves other legal and
institutional values. As such, the rule is subject to countervailing legal and
institutional norms. In the circumstances of this case, the panel’s reading of Fed.
R. App. P. 28(a)(5) would raise a serious constitutional problem, since it would
conflict with the absolute rule of retroactivity that the Supreme Court announced
62
in Griffith. To avoid a constitutional conflict with Griffith, Fed. R. App. P.
28(a)(5) should be read to exclude issues that are raised by a new rule of criminal
procedure announced after a defendant has filed his initial appellate brief. Such a
reading comports with the rule of statutory interpretation set forth in Edward J.
DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S.
568, 575 (1988) (“where an otherwise acceptable construction of a statute would
raise serious constitutional problems, the Court will construe the statute to avoid
such problems unless such construction is plainly contrary to the intent of
Congress.”). The Federal Rules of Appellate Procedure are statutory law subject
to the DeBartolo rule, and there can be no doubt that Griffith is a constitutional
holding.5
The panel also notes that even where an appellant, pursuant to Fed. R. App.
P. 28(j), wishes to file a relevant supplemental authority that “come[s] to light
after a party’s initial brief was filed,” Levy, 379 F.3d at 1244, the supplemental
letter must refer either to a page of the initial brief or to a point argued orally. The
suggestion is that even supplemental authorities filed by letter are only permitted
where they relate to an issue flagged in the initial brief (or in oral argument). Fed.
5
As noted above, Griffith held that “failure to apply a newly declared constitutional rule to
criminal cases pending on direct review violates basic norms of constitutional adjudication.”
Griffith, 479 U.S. at 322. The Griffith Court based this holding on, inter alia, the “cases” and
“controversies” requirement of Article III, § 2.
63
R. App. 28(j) does indeed require that supplemental authorities refer to a page of
the initial brief or to a point argued orally, but it refers generally and loosely to all
“pertinent and significant authorities [that] come to a party’s attention after the
party’s brief has been filed” (emphasis added) – not to issues affirmatively raised
by new rules of criminal procedure announced by the Supreme Court after the
party’s initial brief has been filed. To suggest that Blakely is a case that has
simply “come to [Levy’s] attention” since it was announced by the Supreme Court
is something of a euphemism.
Moreover, even on its own terms, Nealy does not clearly extend to the facts
of the instant case. Nealy involved a defendant who argued at trial that he could
not be sentenced pursuant to a federal statute that distinguished sentencing
maximums based on drug quantity unless the fact of drug quantity was submitted
to the jury. After Apprendi was handed down, the defendant sought to argue for
the first time that the indictment must include the element of drug quantity. Nealy
held that the defendant could not thus raise the “totally new” issue of his
indictment where his initial brief had only raised a question as to his sentence.
Nealy, 232 F.3d at 830. In this case, Levy has already raised the validity of the
trial court’s vulnerable victim enhancement during sentencing, albeit on the basis
of testimony that Levy argues should not have been admitted. He is not extending
64
his legal challenge to an entirely separate aspect of the criminal proceedings
leading to his conviction and sentence. Rather, he seeks to apply a newly declared
constitutional rule to an aspect of those proceedings he has already challenged: the
application of the Federal Sentencing Guidelines to his case.
Although comparable issues were debated in United States v. Ardley, 273
F.3d 991 (11th Cir. 2001),6 that case is also inapplicable. Ardley applied the
procedural bar rule to an Apprendi claim even after the Supreme Court remanded
to us with instructions to reconsider a prior panel opinion in light of Apprendi.
But the defendant in Ardley had available to him at the time of his initial brief a
“general argument” that was subsequently elevated into a new rule of criminal
procedure by the Supreme Court. As already noted, in this case Levy had no such
“general argument” available to him at the time of his initial brief because our
decision in Sanchez had taken away his ability to invoke Apprendi to challenge
the application of the Federal Sentencing Guidelines. This exceptional situation
distinguishes the instant case from Ardley, McGinnis, Nealy, and indeed every
other case cited by the Levy panel.
IV. The Procedural Bar Rule Frustrates Efficiency Concerns in this Context
6
For the reasons expressed in our respective dissents to the denial of rehearing en banc in that
case, both Judge Tjoflat and I believe that Ardley was wrongly decided. It is worth noting that
our sister circuits have not adopted versions of the Ardley and Nealy rule.
65
The panel decision has the unanticipated consequence of frustrating rather
than promoting the judiciary’s interest in conserving its scarce resources. As the
panel decision notes, the procedural bar rule “serves valuable purposes.” Levy,
379 F.3d at 1244 (quoting Presnell v. Kemp, 835 F.2d 1567, 1573-74 (11th Cir.
1988)). One of these purposes is to “conserve judicial and parajudicial resources.”
Presnell, 835 F.2d at 1573. By requiring defendants to raise foreclosed issues over
and over again, no matter how unambiguously this court has already decided those
issues, Levy gives criminal defendants an incentive to flood the federal courts of
this circuit with countless claims that are clearly foreclosed by current precedent,
just as Levy’s Apprendi claim was clearly foreclosed by Sanchez. The district
courts (and this court) will then be forced to address those claims over and over
again. This is not a very effective way of conserving scarce judicial resources.
Moreover, the Supreme Court has rejected – albeit in a different context
(that of plain error) – the panel’s view that defendants should be forced to raise
objections that are clearly without merit in light of current precedent, simply in
order to be able to preserve their claims on appeal. In Johnson, the defendant
raised for the first time on appeal an intervening Supreme Court authority, U.S. v.
Gaudin, 515 U.S. 506 (1995), that requires a trial court to submit the issue of
materiality in a perjury prosecution to the jury. The trial court had decided this
66
issue itself, consistent with the state of the law at the time, and the defendant (as
one would expect) failed to object at trial. In deciding what it would take to
establish “plain” error in these circumstances, the Johnson Court observed as
follows:
The Government contends that for an error to be “plain,” it must have
been so both at the time of trial and at the time of appellate
consideration. In this case, it says, petitioner should have objected to
the [trial] court’s deciding the issue of materiality, even though near-
uniform precedents both from this Court and from the Courts of
Appeals held that course proper. Petitioner, on the other hand, urges
that such a rule would result in counsel’s inevitably making a long
and virtually useless laundry list of objections to rulings that were
plainly supported by existing precedent. We agree with petitioner on
this point. . .
Johnson, 520 U.S. at 467-68. Thus, it seems that the Supreme Court has rejected
the reasoning that underlies the panel’s position and found that it is neither just
nor efficient to expect a defendant to raise objections even where “near-uniform
precedent” of the Supreme Court and the Courts of Appeals forecloses those
67
objections. As noted earlier, prior to Blakely, this and every other circuit court in
the nation had held that Apprendi does not apply to the Federal Guidelines.
For the foregoing reasons, I dissent.
68
United States v. Levy
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2004-12-03
Citations: 391 F.3d 1327
Copy CitationsCombined Opinion