United States v. Levy

[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

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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

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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.

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 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

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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