From Casetext: Smarter Legal Research

U.S. v. Curtis

United States Court of Appeals, Eleventh Circuit
Aug 10, 2004
380 F.3d 1308 (11th Cir. 2004)

Summary

holding that issues not raised in a party's initial brief are deemed abandoned or waived

Summary of this case from United States v. McKinney

Opinion

No. 02-16224.

August 10, 2004.

Appeal from the United States District Court for the Middle District of Florida, D.C. Docket No. 00-00135-CR-ORL-19.

Rosemary T. Cakmis, R. Fletcher Peacock and James T. Skuthan (Fed. Pub. Defenders), Orlando, FL, Maria Guzman (Fed. Pub. Def.), Tampa, FL, for Curtis.

Linda Julin McNamara, Tamra Phipps, Tampa, FL, for Susan H. Raab, Jacksonville, FL, for U.S.

Before ANDERSON, BLACK and HILL, Circuit Judges.


On July 19, 2004, after oral argument but prior to disposition on the merits of his direct appeal, Garland George Curtis filed a motion for leave to file a supplemental brief asserting, for the first time, a challenge to this sentence. Curtis seeks to argue that his sentencing enhancements were unconstitutional under Blakely v. Washington, 125 S.Ct. 2531 (2004). For the following reasons, we deny the motion.

I.

In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." In June 2004, the Court extended this rule to include state sentences that are not beyond the statutory maximum. Blakely v. Washington, 125 S.Ct. 2531 (2004). Although he raised no issue at all regarding his sentence in his initial brief, reply brief, or at oral argument, Curtis now seeks to file a supplemental brief prior to our decision on the merits of his appeal, arguing that his sentencing enhancements were unconstitutional.

Curtis received enhancements based upon two facts found by the sentencing judge — obstruction of justice and vulnerable witness.

We have recently denied a petition for rehearing based upon a newly asserted Blakely claim. United States v. Levy, 377 F.3d 259 (11th Cir. 2004). We explained that the long-standing rule in this circuit has been that we do not consider issues or arguments raised for the first time on petition for rehearing. Id. at ___ (citing inter alia United States v. Martinez, 96 F.3d 473, 475 (11th Cir. 1996)); Scott v. Singletary, 38 F.3d 1547, 1552 n. 7 (11th Cir. 1994); United States v. Fiallo-Jacome, 874 F.2d 1479, 1481 (11th Cir. 1989)). Levy applies this rule in the context of a Blakely claim raised for the first time in a petition for rehearing after an appellate decision on the merits.

Levy and the cases relied upon therein based their decisions upon the equally long-standing rule in this circuit, as well as in the federal rules themselves, that issues not raised by a defendant in his initial brief on appeal are deemed waived. See also United States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001) ("[O]ur well established rule is that issues and contentions not timely raised in the briefs are deemed abandoned"); Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001) ("[S]ince Wilkerson did not raise this issue until her supplemental reply brief, we deem it abandoned. . . ."); United States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001) ("[W]e apply our well-established rule that issues and contentions not timely raised in the briefs are deemed abandoned"). See also Fed.R.App.P. 28(a)(5) (parties must submit all issues on appeal in their initial briefs); 11th Cir. R. 28-1, I.O.P.-5 (supplemental briefs may be filed only with the court's permission, which will be granted only when intervening decisions or new developments related to an issue already properly raised in the party's initial brief).

This rule does not apply differently in a case, such as this, where the motion is to file a supplemental brief raising an issue for the first time prior to a decision on the merits of the direct appeal. We have so held in the context of an Apprendi-based claim raised for the first time in supplemental briefing prior to the decision on the merits. United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000). In Nealy, the defendant raised one sentencing issue in his initial brief. Shortly thereafter, the Supreme Court decided Apprendi, and we ordered supplemental briefing regarding the effect of Apprendi on defendant's previously raised sentencing claim. In his supplemental brief, defendant attempted to assert a totally new, but Apprendi-based, attack on his sentence. We refused to consider the newly-asserted claim, even though it was raised under Apprendi, because "[p]arties must submit all issues on appeal in their initial briefs." Id. We made clear then that an appellant abandons any claim, including an Apprendi claim, not raised in his initial brief. Id. See also Wilkerson, 270 F.3d at 1322; United Stats v. Padilla-Reyes, 247 F.3d 1158, 1164 (11th Cir. 2001).

Curtis' motion requires us to decide if this long-standing rule that issues not properly raised in an initial brief are deemed abandoned applies in the context of a Blakely-based claim sought to be raised by way of supplemental briefing. We hold that it does. In this appeal of his conviction, Curtis raised no issue whatsoever with respect to his sentencing in his initial brief. He now seeks to file a supplemental brief attacking that sentence for the first time based upon the Supreme Court's decision in Blakely. Inasmuch as he failed to raise this issue in his initial brief, he has waived the right to do so now. Levy, ___ F.3d at ___; Ford, 270 F.3d at 1347; Nealy, 232 F.3d at 830. We also discern no miscarriage of justice that would result on account of Curtis' inability to raise his proposed Blakely issue. See Levy, ___ F.3d at ___ n. 3. Accordingly, the motion to file a supplemental brief raising a Blakely claim will be denied.

Curtis not only failed to raise this issue in a timely manner on appeal, but also failed to raise the issue in the district court or at sentencing. Therefore, even if the issue had been adequately raised on appeal, we would have been limited to plain error review. To find reversible error under the plain error standard, we must conclude that (1) an error occurred, (2) the error was plain, (3) the error affected substantial rights, and (4) that failure to correct the error would result in a miscarriage of justice or where the error so seriously affects the fairness, integrity or public reputation of judicial proceedings. United States v. Richardson, 304 F.3d 1061, 1064 (11th Cir. 2002) (quotations and citations omitted). With respect to the second prong, we cannot conclude that it is obvious from Blakely that it applies to the Federal Sentencing Guidelines; there is considerable disagreement amongst jurists and amongst the circuits: compare United States v. Booker, 375 F.3d 508, 2004 WL 1535858 (7th Cir. July 9, 2004) (2-1 decision) (holding that Blakely applies to sentences imposed under the Federal Sentencing Guidelines over a dissent by Judge Easterbrook espousing the opposing view), United States v. Ameline, 376 F.3d 967, 2004 WL 1635808 (9th Cir. July 21, 2004) (2-1 decision) (holding that Blakely applies to sentences imposed under the Federal Sentencing Guidelines), and United States v. Mooney, 2004 WL 1636960 (8th Cir. July 27, 2004) (2-1 decision) (holding that Blakely rendered the Federal Sentencing Guidelines unconstitutional) with, United States v. Pineiro, 377 F.3d 464, 2004 WL 1543170 (5th Cir. July 12, 2004) (holding that Blakely does not apply to the Federal Sentencing Guidelines) and United States v. Hammoud, 2004 WL 1730309 (4th Cir. Aug 02, 2004) (en banc) (unpublished order with majority and dissenting opinions forthcoming) (holding that Blakely did not operate to invalidate the appellant's sentence). See also United States v. Penaranda, 375 F.3d 238, 2004 WL 1551369 (2d Cir. July 12, 2004) (en banc) (certifying question of Blakely's application to the Supreme Court). With respect to the fourth prong, we discern no miscarriage of justice in the case, nor do we believe this case presents a situation that seriously affects the fairness, integrity or public reputation of judicial proceedings. Accordingly, as an alternative basis for our decision, we conclude that Curtis has failed to demonstrate plain error.

II.

Appellant's motion to file a supplemental brief attacking his sentence based upon the Supreme Court's decision in United States v. Blakely is DENIED.


Summaries of

U.S. v. Curtis

United States Court of Appeals, Eleventh Circuit
Aug 10, 2004
380 F.3d 1308 (11th Cir. 2004)

holding that issues not raised in a party's initial brief are deemed abandoned or waived

Summary of this case from United States v. McKinney

holding that "an appellant abandons any claim . . . not raised in his initial brief"

Summary of this case from U.S. v. Gutierrez

holding that "issues not raised by a defendant in his initial brief on appeal are deemed waived"

Summary of this case from U.S. v. Malloy

holding that we will not permit supplemental briefs raising Blakely claims that were not advanced in defendants' pre- Blakely initial briefs notwithstanding the fact that such claims were squarely foreclosed by circuit precedent prior to Blakely

Summary of this case from U.S. v. Matthews

holding that we will not permit supplemental briefs raising Blakely claims that were not advanced in defendants' pre- Blakely initial briefs notwithstanding the fact that such claims were squarely foreclosed by circuit precedent prior to Blakely

Summary of this case from U.S. v. Matthews

holding that the defendant waived Blakely by not raising the issue in the initial brief on appeal, even though the issue was raised prior to the decision on the merits

Summary of this case from Henderson v. McNeil

denying a motion to file a supplemental brief raising a Blakely claim

Summary of this case from Geter v. United States

denying a motion to file a supplemental brief raising a Blakely claim

Summary of this case from U.S. v. Levy

recognizing an appellant abandons an argument not raised in his initial brief on appeal

Summary of this case from United States v. Kelly

recognizing that an appellant abandons a claim not briefed on appeal

Summary of this case from United States v. Thomas

recognizing that issues not argued on appeal are deemed abandoned and waived

Summary of this case from U.S. v. Lightbourn

providing that an appellant abandons a claim or argument that she does not raise in her initial brief on appeal

Summary of this case from United States v. McGee

explaining the “long-standing rule in this circuit, as well as in the federal rules themselves, that issues not raised by a defendant in his initial brief on appeal are deemed waived”

Summary of this case from United States v. McKinley

stating “issues not raised by a defendant in his initial brief on appeal are deemed waived”

Summary of this case from Evans v. Sec'y, Dep't of Corr.

explaining that issues not raised in the initial brief on appeal are deemed waived

Summary of this case from Boyle v. U.S.

noting the "long-standing rule in this circuit" that issues not raised in the parties' initial briefs on appeal are waived

Summary of this case from Hall v. Liberty Mutual Fire Ins.

noting the "long-standing rule in this circuit" that issues not raised in initial briefs on appeal are waived

Summary of this case from Samuels Associates v. Boxcar Foods

discussing long-standing rule in this circuit that issues not raised in a party's initial brief on appeal are deemed waived

Summary of this case from Alexander v. Secretary

discussing the "longstanding rule in this circuit, as well as in the federal rules themselves, that issues not raised by a defendant in his initial brief on appeal are deemed waived"

Summary of this case from Mason v. Bridger

discussing long-standing rule in this circuit that issues not raised in a party's initial brief on appeal are deemed waived

Summary of this case from McMillan v. Secretary

discussing long-standing rule in this circuit that issues not raised in a party's initial brief on appeal are deemed waived

Summary of this case from Davis v. Jones

declining to permit a supplemental brief raising a Blakely issue for the first time, following Nealy and Ford

Summary of this case from U.S. v. Duncan

In Curtis, we illustrated this disagreement by citing cases from the Seventh, Eighth, and Ninth Circuits holding that Blakely applies to sentences imposed under the Federal Sentencing Guidelines and cases from the Fifth and Fourth Circuits holding that Blakely does not apply to the Guidelines.

Summary of this case from U.S. v. Duncan
Case details for

U.S. v. Curtis

Case Details

Full title:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GARLAND GEORGE CURTIS…

Court:United States Court of Appeals, Eleventh Circuit

Date published: Aug 10, 2004

Citations

380 F.3d 1308 (11th Cir. 2004)

Citing Cases

U.S. v. Curtis

PER CURIAM: The panel in this case issued an Order on August 10, 2004, published in 380 F.3d 1308 (11th Cir.…

U.S. v. Levy

Levy, 379 F.3d at 1242.See also United States v. Njau, 386 F.3d 1039, 1041-42 (11th Cir. 2004) (refusing to…