U.S. v. Vanorden

• Decision Date: 30 June 2005
• Docket Number: No. 03-11083.,03-11083.
• Citation: 414 F.3d 1321
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Howard VANORDEN, Jr., a.k.a. "Robotruc@Bellsouth.net", Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

414 F.3d 1321

UNITED STATES of America, Plaintiff-Appellee, v. John Howard VANORDEN, Jr., a.k.a. "Robotruc@Bellsouth.net", Defendant-Appellant.

No. 03-11083.

United States Court of Appeals, Eleventh Circuit.

June 30, 2005.

Lori E. Barrist, Fed. Pub. Def., West Palm Beach, FL, Kathleen M. Williams, Fed. Pub. Def., Miami, FL, Brenda G. Bryn, Fed. Pub. Def., Fort Lauderdale, FL, for Defendant-Appellant.

Anne R. Schultz, U.S. Atty., Harriett R. Galvin, Madeleine R. Shirley, Miami, FL, for Plaintiff-Appellee.

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

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before TJOFLAT and MARCUS, Circuit Judges, and MUSGRAVE^*, Judge.

PER CURIAM:

On November 4, 2002, John Howard Vanorden, Jr. pled guilty to one count of receiving a visual depiction of a minor engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2). The base offense level for this offense was seventeen. U.S. Sentencing Guidelines Manual § 2G2.2(a) (2002). The district court added two levels because the material involved depicted children under the age of twelve, id. § 2G2.2(b)(1), five levels because the offense involved "[d]istribution for the receipt, or expectation of receipt, a thing of value, but not for pecuniary gain," id. § 2G2.2(b)(2)(B), four levels because the offense involved masochistic conduct, id. § 2G2.2(b)(3), and two levels because the offense involved a computer, id. § 2G2.2(b)(5). The court subtracted three levels based on Vanorden's acceptance of responsibility. Id. § 3E1.1. These adjustments resulted in a total offense level of twenty-seven, which yielded a guideline sentencing range of 70-87 months imprisonment when coupled with Vanorden's criminal history category of I. On appeal, Vanorden raised only one issue: whether the district court had erred in enhancing his sentence under § 2G2.2(b)(2)(B), supra, because that guideline did not apply to his conduct. He did not raise a constitutional challenge to his sentence based on the Sixth Amendment right to a trial by jury, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 540 U.S. 965, 124 S.Ct. 429, 157 L.Ed.2d 309 (2003), or United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).¹ We rejected Vanorden's lone claim and affirmed his sentence in an unpublished opinion. United States v. Vanorden, 99 Fed. Appx. 875 (11th Cir. Apr.2, 2004).

Vanorden thereafter filed a petition for a writ of certiorari. On January 24, 2005, the Supreme Court granted Vanorden's petition, vacated our decision, and remanded the case "for further consideration in light of [Booker]." Vanorden v. United States, 543 U.S. ___, 125 S.Ct. 1040, 160 L.Ed.2d 1026 (2005). Under our recent decision in United States v. Dockery, 401 F.3d 1261 (11th Cir.2005), however, "further consideration in light of Booker" does not actually require any consideration of the merits of Vanorden's Booker claim:

Nothing in the [Booker] opinion requires or suggests that we are obligated to consider an issue not raised in any of the briefs that appellant has filed with us. Nor is there anything in the Supreme Court's remand order, which is cast in the usual language, requiring that we treat the case as though the [Booker] issue had been timely raised in this Court. In the absence of any requirement to the contrary in either [Booker] 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.

Id. at 1262-63 (quoting United States v. Ardley, 242 F.3d 989, 990, reh'g en banc denied, 273 F.3d 991 (11th Cir.2001)). Because Vanorden did not challenge his sentence on Sixth Amendment-Apprendi-Blakely-Booker grounds in his first trip through this circuit, this argument is "deemed abandoned." Accordingly, we reinstate our previous opinion and AFFIRM Vanorden's sentence.

TJOFLAT, Circuit Judge, specially concurring:

I concur in the judgment of the panel because we are bound by Dockery. See, e.g., United States v. Machado, 804 F.2d 1537, 1543 (11th Cir.1986) ("Only a decision by this court sitting en banc or by the United States Supreme Court can overrule a prior panel decision."). If we were writing on a clean slate, I would consider the merits of Vanorden's Booker claim. As the panel notes, Dockery concludes that nothing in either Booker itself or in the standard Supreme Court order remanding a case "for further consideration in light of [Booker]" "requires or suggests that we are obligated to consider" a Booker claim that was not raised in the defendant's initial brief on appeal. Under Dockery, such a claim is "deemed abandoned" even if the defendant's initial brief was filed before Blakely and Booker were decided, at which time this and every other circuit had squarely rejected identical arguments. Dockery, 401 F.3d at 1262-63 (quoting Ardley, 242 F.3d at 990).

This is a strange rule we have: in a case in which the Supreme Court has vacated our decision for "for further consideration in light of [Booker]" precisely because we did not have the benefit of Booker when we rendered our first decision, we decline to actually consider the Booker issue on the ground that it was not raised when we issued that first decision. As I have explained elsewhere, it is also a very bad rule, as it is not only inconsistent with Supreme Court precedent and the law of every other circuit, but also encourages defendant-appellants to raise frivolous claims that are squarely foreclosed by circuit and Supreme Court precedent on the off chance that an unanticipated decision will make them suddenly viable. See United States v. Levy, 391 F.3d 1327, 1335-51 (11th Cir.2004) (Tjoflat, J., dissenting from the denial of rehearing en banc); Ardley, 273 F.3d at 995-1007 (Tjoflat, J., dissenting from the denial of rehearing en banc). Nonetheless, it is a strange, bad rule that is the law of the circuit, so I concur rather than dissent. I write separately to explain briefly (1) why it is particularly troubling that this court continues to refuse to address Booker claims in "GVR" cases (i.e., cases in which the Supreme Court has granted the defendant's petition for certiorari, vacated the prior judgment of this court, and remanded for further consideration in light of Booker) and (2) the practical consequences of our rule.

To begin with, I cannot agree with Dockery's determination that "[n]othing in the [Booker] opinion requires or suggests that we are obligated to consider an issue not raised in any of the briefs that appellant has filed with us." Dockery, 401 F.3d at 1262 (quoting Ardley, 242 F.3d at 990). In Booker, the Supreme Court clearly instructed that "we must apply [Booker's] holdings—both the Sixth Amendment holding and [its] remedial interpretation of the Sentencing Act—to all cases on direct review." Booker, 125 S.Ct. at 769 (emphasis added). In other words, Dockery finds nothing in the Supreme Court's specific directive that we must apply Booker to all cases on direct review that even suggests that we should address Booker claims in this subset of cases on direct review (i.e., cases in which the defendant's initial brief did not contain a Booker-type claim for the imminently sensible reason that such a claim had been rejected by each and every circuit). Other circuits have, to say the least, read Booker's instruction differently. E.g., United States v. Ameline, 409 F.3d 1073, 1076 (9th Cir.2005) (en banc) ("Booker explicitly stated that its holding applies to all cases pending on direct appeal. Booker, 125 S.Ct. at 769. Even where the briefs filed by the parties do not raise a Booker objection, we conclude that the issue may be raised and should be considered."); United States v. Washington, 398 F.3d 306, 312 n. 7 (4th Cir.2005) ("Although appellate contentions not raised in an opening brief are normally deemed to have been waived, the Booker principles apply in this proceeding because the Court specifically mandated that we `must apply [Booker] ... to all cases on direct review.'" (citation omitted) (quoting Booker, 125 S.Ct. at 769)).

To be sure, the Booker Court did go on to say that it "expect[ed] reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the `plain-error' test." 125 S.Ct. at 769. And the Supreme Court has also said that the general principle that a decision concerning the conduct of criminal prosecutions must be applied to all cases still pending on direct review is "subject, of course, to established principles of waiver, harmless error, and the like." Shea v. Louisiana, 470 U.S. 51, 58 n.4, 105 S.Ct. 1065, 1069 n. 4 84 L.Ed.2d 38 (1985).<sup>1</sup> These qualifications of the general principle do not, however, implicate this case. First, the rule followed in Dockery is not an "ordinary prudential doctrine"; in fact, it is a quite extra ordinary rule in that we invented it only four years ago and it has not been followed by any other circuit. See Levy, 391 F.3d at 1343-48 (Tjoflat, J., dissenting from the denial of rehearing en banc). Second, the fact that Vanorden's claim is "subject ... to established principles of waiver" is inapposite because Vanorden has done nothing that can plausibly be construed as a "waiver." As the Supreme Court has explained, "[w]aiver 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.'" United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). Thus, while Vanorden did forfeit his Booker claim by failing to "timely assert[]" it—which means that review in his case should be for plain error only—it is clear that he has...