FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 12, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 03-15473

Non-Argument Calendar

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D.C. Docket No. 03-00078-CR-E

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID FRANKLIN COTNEY, JR.

Defendant-Appellant.

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Appeal from the United States District Court for the

Middle District of Alabama

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(September 12, 2005)

ON REMAND FROM THE

SUPREME COURT OF THE UNITED STATES

Before BLACK, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
2

This case is before the Court for consideration in light of United States v.

Booker, 125 S. Ct. 738 (2005). We previously affirmed Cotney’s sentence. See

United States v. Cotney, Case No. 03-15473 (11th Cir. Sept. 15, 2004)

(unpublished). The Supreme Court vacated our prior decision and remanded the

case to us for further consideration in light of Booker.

In his initial brief on direct appeal, Cotney did not assert error based on

Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), or any other case extending or

applying the Apprendi principle. However, Cotney sought permission to file a

supplemental brief to present additional arguments concerning Blakely v.

Washington, 124 S. Ct. 2531 (2004). We denied Cotney’s motion. 

In United States v. Dockery, 401 F.3d 1261, 1262–63 (11th Cir. 2005), after

the Supreme Court’s remand with instructions to reconsider our opinion in light of

Booker, we relied on our earlier case of United States v. Ardley, 242 F.3d 989

(11th Cir.), cert. denied, 121 S. Ct. 2621 (2001), which observed:

Nothing in the Apprendi 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 Apprendi issue had been timely

raised in this Court. 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. 
3

Ardley, 242 F.3d at 990 (citations omitted). Thus, because Dockery had not

asserted an Apprendi (or its progeny) challenge to his sentence, we reinstated our

previous opinion. Dockery, 401 F.3d at 1263.

In United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000), we denied

Nealy’s attempt to raise an Apprendi-based argument for the first time by filing a

supplemental brief. We noted that “[p]arties must submit all issues on appeal in

their initial briefs.” Nealy held supplemental briefs will 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 already properly

raised in the party’s initial brief. Nealy further held “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.

 Because Cotney did not assert error based on Apprendi (or its progeny) in

his initial brief on appeal, we reinstate our previous opinion in this case and affirm 

Cotney’s sentence after our reconsideration in light of Booker, pursuant to the

Supreme Court’s mandate. 

OPINION REINSTATED IN PART; AFFIRMED IN PART.