U.S. v. Levy

• Citation: 416 F.3d 1273
• Decision Date: 12 July 2005
• Docket Number: No. 01-17133.,01-17133.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raphael R. LEVY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

416 F.3d 1273

UNITED STATES of America, Plaintiff-Appellee, v. Raphael R. LEVY, Defendant-Appellant.

No. 01-17133.

United States Court of Appeals, Eleventh Circuit.

July 12, 2005.

Jeffrey S. Weiner, Law Offices of Jeffrey S. Weiner, P.A., Ronald S. Lowy, Law Offices of Ronald S. Lowy, Miami, FL, for Levy.

Lisette M. Reid, Anne R. Schultz, U.S. Atty., Maria Beguiristain, Miami, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before ANDERSON, HULL and PRYOR, Circuit Judges.

PER CURIAM:

This case is before this Court for the third time. We previously affirmed Levy's sentences in United States v. Levy, 374 F.3d 1023 (11th Cir.2004), and denied Levy's petition for rehearing in United States v. Levy, 379 F.3d 1241 (11th Cir.2004).¹ On June 6, 2005, the Supreme Court vacated our judgment and remanded Levy's case to us for further consideration in light of United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See Levy v. United States, 543 U.S. ___, 125 S.Ct. 2542, 162 L.Ed.2d 272 (2005).

Having now considered Levy's case in light of Booker, we affirm Levy's sentences not only for the reasons stated in our prior opinions but also for those explained below.

I. BACKGROUND

After this Court affirmed Levy's sentences in United States v. Levy, 374 F.3d 1023 (11th Cir.2004), the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which extended the constitutional rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to the Washington State Sentencing Guidelines. As we all are aware, the Supreme Court again extended Apprendi to the United States Sentencing Guidelines in Booker.

After Blakely, but before Booker, Levy filed a petition for rehearing in this Court asserting, for the first time, that he had a right to a jury trial regarding his federal sentencing enhancements. In his petition for rehearing, Levy conceded that at no time prior to his petition for rehearing — not in the district court and not in his briefs on appeal — did he raise any argument regarding the constitutionality of the sentencing guidelines or any right to a jury trial on his sentencing enhancements or any arguments grounded in Apprendi.

On August 3, 2004, this Court denied Levy's petition for rehearing based on this Court's long-standing prudential rule of declining to entertain issues not raised in an appellant's initial brief on appeal but raised for the first time in a petition for rehearing. See, e.g., Levy, 379 F.3d at 1242-45; United States v. Ardley, 273 F.3d 991, 991-95 (11th Cir.2001) (Carnes, J., concurring in the denial of rehearing en banc) (collecting cases); United States v. Nealy, 232 F.3d 825, 830-31 (11th Cir.2000).²

Levy then filed a petition for certiorari in the Supreme Court. The Supreme Court granted certiorari, vacated our judgment, and remanded Levy's case for consideration in light of Booker, stating as follows:

Motion of petitioner for leave to proceed in forma pauperis and petition for writ of certiorari granted. Judgment vacated and case remanded to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of United States v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2005).

Levy v. United States, ___ U.S. ___, 125 S.Ct. 2542, 162 L.Ed.2d 272 (2005). Before considering Levy's case in light of Booker, we first explain our prudential rule that issues not raised in a party's initial brief are deemed abandoned and generally will not be considered by this Court. We then consider Levy's case in light of Booker, explain why under Booker our established prudential rule still applies, and thus why under Booker defendant Levy is not entitled to a new sentencing.

II. THIS COURT'S PRUDENTIAL RULE

In Nealy, this Court summarized our prudential rule of declining to consider issues not timely raised in a party's initial brief, as follows:

Parties must submit all issues on appeal in their initial briefs. When new authority arises after a brief is filed, this circuit permits parties to submit supplemental authority on "intervening decisions or new developments" regarding issues already properly raised in the initial briefs. Also, parties can seek permission of the court to file supplemental briefs on this new authority. But parties cannot properly raise new issues at supplemental briefing, even if the issues arise based on the intervening decisions or new developments cited in the supplemental authority.

Nealy, 232 F.3d at 830 (internal citations omitted). This Court's prudential rule is well established, and thus we repeatedly have declined to consider issues raised for the first time in a petition for rehearing. See, e.g., United States v. Martinez, 96 F.3d 473, 475 (11th Cir.1996); Scott v. Singletary, 38 F.3d 1547, 1552 n. 7 (11th Cir.1994); United States v. Fiallo-Jacome, 874 F.2d 1479, 1481 (11th Cir.1989); Dunkins v. Thigpen, 854 F.2d 394, 399 n. 9 (11th Cir.1988); Holley v. Seminole County Sch. Dist., 763 F.2d 399, 400-01 (11th Cir.1985).³

To allow a new issue to be raised in a petition for rehearing circumvents Federal Rule of Appellate Procedure 28(a)(5), which requires that an appellant's initial brief must contain "a statement of the issues presented for review."⁴ Further, the rule requiring that issues be raised in opening briefs "serves valuable purposes, as do all of the procedural default rules, which is why we regularly apply them. See generally Presnell v. Kemp, 835 F.2d 1567, 1573-74 (11th Cir.1988)." Ardley, 273 F.3d at 991 (Carnes, J., concurring in the denial of rehearing en banc).⁵ Two of those valuable purposes are judicial economy and finality. Indeed, both purposes are implicated in this case as Levy concedes that he did not raise any constitutional challenges to the sentencing guidelines or his sentence or any Apprendi-type argument until after this Court had already held oral argument and issued a published opinion affirming his sentences.

Accordingly, based on our prudential rule, this Court denied Levy's petition for rehearing, based on his failure to raise any Apprendi-type issue in his initial brief on appeal. Levy, 379 F.3d at 1245.

III. CONSIDERATION IN LIGHT OF BOOKER

Because of the Supreme Court remand, we now further consider Levy's sentences in light of Booker. We recognize that in Booker, the Supreme Court instructed courts to "apply today's holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act — to all cases on direct review." Booker, 125 S.Ct. at 769. However, the Booker Court itself emphasized that even though Booker was to be applied to cases on direct review it did not mean "that every sentence gives rise to a Sixth Amendment violation [or] that every appeal will lead to a new sentencing hearing." Id. In fact, the Supreme Court in Booker also directed courts to "apply ordinary prudential doctrines [including], for example, whether the issue was raised below ...." Id.

Moreover, this principle recognized in Booker — that retroactivity is subject to ordinary prudential doctrines — is also explicitly recognized in two other Supreme Court cases. See Shea v. Louisiana, 470 U.S. 51, 58 n. 4, 105 S.Ct. 1065, 1069 n. 4, 84 L.Ed.2d 38 (1985); Pasquantino v. United States, ___ U.S. ___, ___ n. 14, 125 S.Ct. 1766, 1781 n. 14, 161 L.Ed.2d 619 (2005).

For example, in Shea v. Louisiana, the Supreme Court concluded that "if a case was pending on direct review at the time Edwards [v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)] was decided, the appellate court must give retroactive effect to Edwards, subject, of course, to established principles of waiver, harmless error, and the like." Shea, 470 U.S. at 58 n. 4, 105 S.Ct. at 1069 n. 4. According to Shea, courts of appeal must subject the retroactive effect of new cases to established prudential rules. Id. As noted above, this Court's prudential rule that issues not raised in a party's initial brief will not be considered is certainly well-established. Thus, as dictated in Shea, the retroactive effect of Booker is subject to our established prudential rules.

Further, in Pasquantino, the Supreme Court applied its own prudential rules to foreclose the ability of defendants to raise untimely Blakely claims. In Pasquantino, issued after Booker, the petitioners argued "in a footnote that their sentences should be vacated in light of Blakely ...." Pasquantino, 125 S.Ct. at 1781 n. 14. However, "Petitioners did not raise this claim before the Court of Appeals or in their petition for certiorari." Id. Although the petitioners failed to previously raise the issue, the dissent emphasized that "[t]his omission was no fault of the defendants, ... as the petition in this case was filed and granted well before the Court decided Blakely. Petitioners thus raised Blakely at the earliest possible point: in their merits briefing." Pasquantino, 125 S.Ct. at 1783 n. 5 (Ginsburg, J., dissenting). Despite the fact that the petitioners raised their Blakely claim at the earliest possible moment after that decision was released, the Supreme Court applied its prudential rules and declined to address the issue. Pasquantino, 125 S.Ct. at 1781 n. 14.

It seems relatively obvious that if the Supreme Court may apply its prudential rules to foreclose a defendant's untimely Blakely, now Booker, claim, there is no reason why this Court should be powerless to apply its prudential rule to foreclose defendant Levy's untimely Blakely, now Booker, claim.

We also point out why Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), is fully consistent with our established prudential rule. In Griffith, the Supreme Court concluded that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases ... pending on direct...