U.S. v. Levy
Decision Date | 03 August 2004 |
Docket Number | No. 01-17133.,01-17133. |
Citation | 379 F.3d 1241 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Raphael R. LEVY, Defendant-Appellant. |
Court | U.S. Court of Appeals — Eleventh Circuit |
Jeffrey S. Weiner, Law Offices of Jeffrey S. Weiner, P.A., Ronald S. Lowy, Law Offices of Ronald S. Lowy, Miami, FL, for Defendant-Appellant.
Lisette M. Reid, Anne R. Schultz, Maria Beguiristain, Miami, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Southern District of Florida.
ON PETITION FOR REHEARING
Before ANDERSON, HULL and PRYOR, Circuit Judges.
On June 23, 2004, and after oral argument, this Court affirmed Appellant Levy's federal sentences. United States v. Levy, 374 F.3d 1023 (11th Cir.2004). This matter is now before the Court on Appellant Levy's Petition for Rehearing, which we hereby deny. One matter in his Petition warrants further discussion.
Appellant Levy's Petition seeks to raise a new sentencing issue based on Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Blakely, the United States Supreme Court extended the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).1 On appeal, Blakely argued that the State of Washington's sentencing procedure deprived him of this right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence. Blakely, 124 S.Ct. at 2536. The state appellate courts rejected Blakely's argument and affirmed. Id. On certiorari review, the Supreme Court reversed in a 5-4 decision, holding that Blakely's enhanced sentence violated Apprendi. Id. at 2543. Notably, the 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 for Class B felonies. Id. at 2537-40; see also In re Dean, 375 F.3d 1287, 2004 WL 1534788 (11th Cir. July 9, 2004) ( ).
Levy's Petition concedes that his initial brief on appeal did not claim that he had a Sixth Amendment right to a jury trial on his federal sentencing enhancements.2 His Petition argues that "[t]he reasoning of Apprendi, Ring [v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)], and Blakely make clear however that the United States [Sentencing] Guidelines includes the identical constitutional infirmity as set forth in the Washington State Guidelines" in Blakely.
In denying Levy's Petition, we do not entertain this new issue because Levy did not timely raise it in his initial brief on appeal. This Court repeatedly has refused to consider issues raised for the first time in a petition for rehearing. See, e.g., United States v. Martinez, 96 F.3d 473, 475 (11th Cir.1996) (); Scott v. Singletary, 38 F.3d 1547, 1552 n. 7 (11th Cir.1994) ( ); United States v. Fiallo-Jacome, 874 F.2d 1479, 1481 (11th Cir.1989) () (citations omitted); Dunkins v. Thigpen, 854 F.2d 394, 399 n. 9 (11th Cir.1988) ( ); Holley v. Seminole County Sch. Dist., 763 F.2d 399, 401 (11th Cir.1985) (); United States v. Richards, 646 F.2d 962, 963 (5th Cir. June 1, 1981) (); Moser v. Texas Trailer Corp., 630 F.2d 249, 250 (5th Cir.1980) ().
Similar to petitions for rehearing, and even before a decision on the merits of a direct appeal is issued, this Court repeatedly has denied motions to file supplemental briefs that seek to raise new issues not covered in an appellant's initial brief on appeal. See, e.g., Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir.2001) (); United States v. Padilla-Reyes, 247 F.3d 1158, 1164 (11th Cir.2001) (); United States v. Ardley, 242 F.3d 989, 990 (11th Cir.2001) (collecting cases) ("[W]e apply our well-established rule that issues and contentions not timely raised in the briefs are deemed abandoned."); United States v. Nealy, 232 F.3d 825, 830 (11th Cir.2000) (); McGinnis v. Ingram Equip. Co., Inc., 918 F.2d 1491, 1495-97 (11th Cir.1990) (en banc) ( );3 Fed. Sav. and Loan Ins. Corp. v. Haralson, 813 F.2d 370, 373 n. 3 (11th Cir.1987) (); see also United States v. Ford, 270 F.3d 1346, 1347 (11th Cir.2001) ().
For example, in Nealy, this Court noted that "[p]arties must submit all issues on appeal in their initial briefs." 232 F.3d at 830 (citing Fed. R.App. P. 28(a)(5)). The Nealy Court held that supplemental briefs will be authorized, pursuant to 11th Cir. R.28-1, I.O.P.-5, only when intervening decisions or new developments arise after the moving party's brief has been filed and only when that new authority relates to an issue or issues already properly raised in the party's initial brief. Id.4 The Court expressly held that "parties cannot properly raise new issues at supplemental briefing, even if the [new] issues arise based on the intervening decisions or new developments cited in the supplemental authority." Id. The new indictment issue we refused to hear in Nealy was Apprendi-based.
As for reply briefs, this Court follows this same rule and repeatedly has refused to consider issues raised for the first time in an appellant's reply brief. See, e.g., KMS Rest. Corp. v. Wendy's Int'l, Inc., 361 F.3d 1321, 1328 n. 4 (11th Cir.2004) ( ); United States v. Whitesell, 314 F.3d 1251, 1256 (11th Cir.2002) (), cert. denied, 539 U.S. 951, 123 S.Ct. 2628, 156 L.Ed.2d 643 (2003); United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir.1999) ( ); United States v. Martinez, 83 F.3d 371, 377 n. 6 (11th Cir.1996) ( ); Jackson v. United States, 976 F.2d 679, 680 n. 1 (11th Cir.1992) ( ); United States v. Oakley, 744 F.2d 1553, 1556 (11th Cir.1984) (); United States v. Benz, 740 F.2d 903, 916 (11th Cir.1984) (same).
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 that 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. Whatever the basis, our practice has been longstanding. As we have explained, the rule requiring that issues be raised in opening briefs 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.
It is also worthy of note that Fed. R.App. P. 28(j) recognizes that "pertinent and significant authorities" could come to light after a party's initial brief was filed, and that rule allows a party to file a supplemental authority in order to bring such authority to the court's attention. Likewise, under 11th Cir. R.40-5, a party may submit a letter brief "if pertinent and significant authorities come to a party's attention while a party's petition for rehearing" is pending. However, Fed. R.App. P. 28(j) specifically states that a party must "state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally." (Emphasis added). This language further underscores that an appellant's supplemental authority must relate to an issue previously raised in a proper fashion, and that an appellant...
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