[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-16224 August 10, 2004
________________________ THOMAS K. KAHN
D. C. Docket No. 00-00135-CR-ORL-19 CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARLAND GEORGE CURTIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 10, 2004)
Before ANDERSON, BLACK and HILL, Circuit Judges.
BY THE COURT:
On July 19, 2004, after oral argument but prior to disposition on the merits
of his direct appeal, Garland George Curtis filed a motion for leave to file a
supplemental brief asserting, for the first time, a challenge to this sentence. Curtis
seeks to argue that his sentencing enhancements were unconstitutional under
Blakely v. Washington, 125 S.Ct. 2531 (2004). For the following reasons, we deny
the motion.
I.
In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the United States
Supreme Court 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.” In June 2004, the
Court extended this rule to include state sentences that are not beyond the
statutory maximum. Blakely v. Washington, 125 S.Ct. 2531 (2004). Although he
raised no issue at all regarding his sentence in his initial brief, reply brief, or at
oral argument, Curtis now seeks to file a supplemental brief prior to our decision
on the merits of his appeal, arguing that his sentencing enhancements were
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unconstitutional.1
We have recently denied a petition for rehearing based upon a newly
asserted Blakely claim. United States v. Levy, ___ F.3d ___ (11th Cir. 2004). We
explained that the long-standing rule in this circuit has been that we do not
consider issues or arguments raised for the first time on petition for rehearing. Id.
at ___ (citing inter alia United States v. Martinez, 96 F.3d 473, 475 (11th Cir.
1996)); Scott v. Singletary, 38 F.3d 1547, 1552 n.7 (11th Cir. 1994); United States
v. Fiallo-Jacome, 874 F.2d 1479, 1481 (11th Cir. 1989)). Levy applies this rule in
the context of a Blakely claim raised for the first time in a petition for rehearing
after an appellate decision on the merits.
Levy and the cases relied upon therein based their decisions upon the
equally long-standing rule in this circuit, as well as in the federal rules themselves,
that issues not raised by a defendant in his initial brief on appeal are deemed
waived. See also United States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001)
(“[O]ur well established rule is that issues and contentions not timely raised in the
briefs are deemed abandoned”); Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322
(11th Cir. 2001) (“[S]ince Wilkerson did not raise this issue until her supplemental
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Curtis received enhancements based upon two facts found by the sentencing judge
– obstruction of justice and vulnerable witness.
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reply brief, we deem it abandoned....”); United States v. Ardley, 242 F.3d 989, 990
(11th Cir. 2001) (“[W]e apply our well-established rule that issues and contentions
not timely raised in the briefs are deemed abandoned”). See also Fed.R.App.P.
28(a)(5) (parties must submit all issues on appeal in their initial briefs); 11th Cir.
R. 28-1, I.O.P.-5 (supplemental briefs may be filed only with the court’s
permission, which will be granted only when intervening decisions or new
developments related to an issue already properly raised in the party’s initial
brief).
This rule does not apply differently in a case, such as this, where the motion
is to file a supplemental brief raising an issue for the first time prior to a decision
on the merits of the direct appeal. We have so held in the context of an Apprendi-
based claim raised for the first time in supplemental briefing prior to the decision
on the merits. United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000). In
Nealy, the defendant raised one sentencing issue in his initial brief. Shortly
thereafter, the Supreme Court decided Apprendi, and we ordered supplemental
briefing regarding the effect of Apprendi on defendant’s previously raised
sentencing claim. In his supplemental brief, defendant attempted to assert a totally
new, but Apprendi-based, attack on his sentence. We refused to consider the
newly-asserted claim, even though it was raised under Apprendi, because
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“[p]arties must submit all issues on appeal in their initial briefs.” Id. We made
clear then that an appellant abandons any claim, including an Apprendi claim, not
raised in his initial brief. Id. See also Wilkerson, 270 F.3d at 1322; United Stats
v. Padilla-Reyes, 247 F.3d 1158, 1164 (11th Cir. 2001).
Curtis’ motion requires us to decide if this long-standing rule that issues not
properly raised in an initial brief are deemed abandoned applies in the context of a
Blakely-based claim sought to be raised by way of supplemental briefing. We
hold that it does. In this appeal of his conviction, Curtis raised no issue
whatsoever with respect to his sentencing in his initial brief. He now seeks to file
a supplemental brief attacking that sentence for the first time based upon the
Supreme Court’s decision in Blakely. Inasmuch as he failed to raise this issue in
his initial brief, he has waived the right to do so now. Levy, ___ F.3d at ___;
Ford, 270 F.3d at 1347; Nealy, 232 F.3d at 830. We also discern no miscarriage of
justice that would result on account of Curtis’ inability to raise his proposed
Blakely issue. See Levy, ___ F.3d at ___ n.3.2 Accordingly, the motion to file a
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Curtis not only failed to raise this issue in a timely manner on appeal, but also
failed to raise the issue in the district court or at sentencing. Therefore, even if the issue had
been adequately raised on appeal, we would have been limited to plain error review. To find
reversible error under the plain error standard, we must conclude that (1) an error occurred, (2)
the error was plain, (3) the error affected substantial rights, and (4) that failure to correct the error
would result in a miscarriage of justice or where the error so seriously affects the fairness,
integrity or public reputation of judicial proceedings. United States v. Richardson, 304 F.3d
1061, 1064 (11th Cir. 2002) (quotations and citations omitted). With respect to the second
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supplemental brief raising a Blakely claim will be denied.
II.
Appellant’s motion to file a supplemental brief attacking his sentence based
upon the Supreme Court’s decision in Blakely v. Washington is DENIED.
prong, we cannot conclude that it is obvious from Blakely that it applies to the Federal
Sentencing Guidelines; there is considerable disagreement amongst jurists and amongst the
circuits: compare United States v. Booker, ___ F.3d ___, 2004 WL 1535858 (7th Cir. July 9,
2004) (2-1 decision) (holding that Blakely applies to sentences imposed under the Federal
Sentencing Guidelines over a dissent by Judge Easterbrook espousing the opposing view), United
States v. Ameline, ___ F.3d ___, 2004 WL 1635808 (9th Cir. July 21, 2004) (2-1 decision)
(holding that Blakely applies to sentences imposed under the Federal Sentencing Guidelines),
and United States v. Mooney, ___ F.3d ___, 2004 WL 1636960 (8th Cir. July 27, 2004) (2-1
decision) (holding that Blakely rendered the Federal Sentencing Guidelines unconstitutional)
with, United States v. Pineiro, ___ F.3d ___, 2004 WL 1543170 (5th Cir. July 12, 2004) (holding
that Blakely does not apply to the Federal Sentencing Guidelines) and United States v.
Hammoud, 2004 WL 1730309 (4th Cir. Aug 02, 2004) (en banc) (unpublished order with
majority and dissenting opinions forthcoming) (holding that Blakely did not operate to invalidate
the appellant’s sentence). See also United States v. Penaranda, ___ F.3d ___, 2004 WL 1551369
(2d Cir. July 12, 2004) (en banc) (certifying question of Blakely’s application to the Supreme
Court). With respect to the fourth prong, we discern no miscarriage of justice in the case, nor do
we believe this case presents a situation that seriously affects the fairness, integrity or public
reputation of judicial proceedings. Accordingly, as an alternative basis for our decision, we
conclude that Curtis has failed to demonstrate plain error.
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