FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 July 12, 2005 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 01-17133

________________________

D.C. Docket No. 99-08125-CR-DTKH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAPHAEL R. LEVY

Defendant-Appellant.

__________________________

Appeal from the United States District Court for the

Southern District of Florida

_________________________

(July 12, 2005)

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
On December 3, 2004, this Court also denied Levy’s petition for en banc rehearing. 1

United States v. Levy, 391 F.3d 1327 (2004).

2

Levy’s sentences in United States v. Levy, 374 F.3d 1023 (11 Cir. 2004), and th

denied Levy’s petition for rehearing in United States v. Levy, 379 F.3d 1241 (11

th

Cir. 2004). On June 6, 2005, the Supreme Court vacated our judgment and 1

remanded Levy’s case to us for further consideration in light of United States v.

Booker, 125 S. Ct. 738 (2005). See Levy v. United States, – S.Ct. –, 2005 WL

540692 (U.S. June 6, 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 (11 Cir. 2004), the Supreme Court decided Blakely v. Washington, th

124 S. Ct. 2531 (2004), which extended the constitutional rule announced in

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (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
Subsequently, this Court has applied this prudential rule in other cases where defendants 2

untimely raised Blakely, now Booker, claims. See, e.g., United States v. Pipkins, – F.3d –, 2005

WL 1421449, at *2 (11 Cir. June 20, 2005); United States v. Sears, –F.3d –, 2005 WL 1334892, th

at *1 (11 Cir. June 8, 2005); United States v. Verbitskaya, 406 F.3d 1324, 1339-40 (11 Cir. th th

2005); United States v. Day, 405 F.3d 1293, 1294 n.1 (11 Cir. 2005); United States v. Dockery, th

401 F.3d 1261, 1262-63 (11 Cir. 2005). th

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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 (11 Cir. 2001) (Carnes, J., concurring in the denial th

of rehearing en banc) (collecting cases); United States v. Nealy, 232 F.3d 825,

830-31 (11 Cir. 2000). th 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: 
4

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. __ (2005).

Levy v. United States, – S. Ct. –, 2005 WL 540692 (U.S. June 6, 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
In addition, before a decision on the merits of a direct appeal, this Court repeatedly has 3

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

(11 Cir. 2001); United States v. Ardley, 242 F.3d 989, 990 (11 Cir. 2001); United States v. th th

Nealy, 232 F.3d 825, 830-31 (11 Cir. 2000); McGinnis v. Ingram Equip. Co., 918 F.2d 1491, th

1495-97 (11 Cir. 1990) (en banc); see also Fed. Sav. And Loan Ins. Corp. v. Haralson, 813 F.2d th

370, 373 n.3 (11 Cir. 1987). th

As for reply briefs, this Court also declines 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 (11 Cir. 2004) (quoting Tallahassee Mem’l Reg’l Med. Ctr. v. Bowen, 815 F.2d 1435, th

1446 n.16 (11 Cir. 1987)); United States v. Whitesell, 314 F.3d 1251 1256 (11 Cir. 2002); th th

United States v. Dicter, 198 F.3d 1284, 1289 (11 Cir. 1999); United States v. Martinez, 83 F.3d th

371, 377 n.6 (11 Cir. 1996); Jackson v. United States, 976 F.2d 679, 680 n.1 (11 Cir. 1992); th th

United States v. Oakley, 744 F.2d 1553, 1556 (11 Cir. 1984); United States v. Benz, 740 F.2d th

903, 916 (11 Cir. 1984). th

In Nealy, this Court noted that “[p]arties must submit all issues on appeal in their initial 4

briefs.” 232 F.3d at 830 (citing Fed. R. App. P. 28(a)(5)). The Nealy Court explained that

supplemental briefs will be authorized, pursuant to 11 Cir. R. 28-1, I.O.P.5, only when th

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. The Court expressly concluded 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

5

for the first time in a petition for rehearing. See, e.g., United States v. Martinez,

96 F.3d 473, 475 (11 Cir. 1996); Scott v. Singletary, 38 F.3d 1547, 1552 n.7 (11 th th

Cir. 1994); United States v. Fiallo-Jacome, 874 F.2d 1479, 1481 (11 Cir. 1989); th

Dunkins v. Thigpen, 854 F.2d 394, 399 n.9 (11 Cir. 1988); Holley v. Seminole th

County Sch. Dist., 763 F.2d 399, 400-01 (11 Cir. 1985). th 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
hear in Nealy was Apprendi-based. Id.

Importantly, this rule applies with equal force, regardless of whether it is the 5

government, criminal defendant, or any other party to litigation who has failed to raise an issue in

their opening brief.

6

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). Two of those valuable purposes are judicial economy and 5

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
7

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 (1985); Pasquantino v. United States, 125 S. Ct. 1766, 1781 n.14

(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 (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
8

issues not raised in a party’s initial brief will not be considered is certainly wellestablished. Thus, as dictated in Shea, the retroactive effect of Booker is subject

to our established prudential rules.

Further, in Pasquantino v. United States, the Supreme Court applied its own

prudential rules to foreclose the ability of defendants to raise untimely Blakely

claims. In Pasquantino v. United States, 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

procedural 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
The Griffith Court did not require that a dissimilarly situated defendant – one who did 6

not preserve his objection below or on appeal – would necessarily benefit from the new

constitutional rule. Instead, the Griffith holding is necessary to “treat[] similarly situated

defendants the same.” Griffith, 479 U.S. at 323, 107 S. Ct. at 713. Parties who fail to raise

timely claims of error are not similarly situated to those who properly preserved their claims. 

After all, that is the very basis of plain-error review. Likewise, those parties that timely raise

issues in their initial appellate briefs are not similarly situated to those who fail to timely raise

issues in their initial appellate brief.

9

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

(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 review

or not yet final . . . .” Id. at 328, 107 S. Ct. at 716. However, Griffith addressed a

situation in which the defendant timely raised the error in issue in both the district

court and the court of appeals. As we have stated, “[t]he Griffith holding . . .

applies only to defendants who preserved their objections throughout the trial and

appeals process.” Verbitskaya, 406 F.3d at 1340 n.18 (citing Griffith, 479 U.S. at

316-20, 107 S. Ct. at 709-11).6

Thus, there are two distinct and independent rules: (1) retroactivity; and (2)

this Court’s prudential rule that issues not raised in the opening brief are
10

abandoned. Although each rule plays an equally important role in the orderly

administration of justice, they answer different questions. As explained by Judge

Carnes in Ardley,

[r]etroactivity doctrine answers the question of which cases a new

decision applies to, assuming that the issue involving that new decision

has been timely raised and preserved. Procedural bar doctrine answers

the question of whether an issue was timely raised and preserved, and

if not, whether it should be decided anyway.

Ardley, 273 F.3d at 992 (Carnes, J., concurring in the denial of rehearing en banc).

Requiring all parties to raise issues in their initial briefs is not unduly harsh

or overly burdensome. This is particularly true about constitutional challenges to

the federal sentencing guidelines, which have continued to be raised for many

years despite adverse precedent. Moreover, when Apprendi was decided in 2000,

criminal defense attorneys were well aware of Apprendi’s potential impact on the

sentencing guidelines well before the Supreme Court’s decisions in Blakely and

Booker. For example, in numerous cases before our Court, defense counsel, after

Apprendi and before Blakely, asserted that their clients’ rights to a jury trial were

violated when the district court enhanced their sentences with extra-verdict

enhancements not proved to a jury beyond a reasonable doubt. See, e.g., United

States v. Reese, 382 F.3d 1308, 1309 (11 Cir. 2004), vacated by 125 S. Ct. 1089

th
For example, Reese’s initial brief was filed on January 20, 2004, before Blakely was 7

decided on June 24, 2004. In his initial brief on appeal, Reese made an Apprendi-based

argument about a sentencing enhancement he received. Reese, 382 F.2d 1308, 1310 n.1.

There is a good example of the continued availability of previously foreclosed arguments 8

in the Apprendi line of cases. Compare Walton v. Arizona, 497 U.S. 639, 649, 110 S. Ct. 3047,

11

(2005) ; United States v. Petrie, 302 F.3d 1280, 1289-90 (11 Cir. 2002), cert. 7 th

denied, 538 U.S. 971, 123 S. Ct. 1775 (2003); United States v. Snyder, 291 F.3d

1291, 1294 n.3 (11 Cir. 2002); and United States v. Rodriguez, 279 F.3d 947, th

949-50, 950 n.2 (11 Cir. 2002). These Apprendi-type arguments about federal th

sentencing enhancements were made in those cases not only before Blakely but

also despite adverse precedent in United States v. Sanchez, 269 F.3d 1250 (11

th

Cir. 2001). 

Although it may be true that most attorneys could not have predicted the

Supreme Court’s precise resolution of the sentencing issues in Booker, the general

argument that the federal sentencing guidelines are unconstitutional or that a jury,

not a judge, must decide the facts supporting extra-verdict sentencing

enhancements was available to counsel long before Blakely and Booker. See

McGinnis, 918 F.2d at 1496 (stating that although no one could have predicted the

Supreme Court’s resolution of a case resolving the scope of § 1981, the general

argument that § 1981 did not apply to appellant’s conduct was available, and

appellant waived its argument by not raising it in its initial brief).8
3054-55, 111 L.Ed. 511 (1990), with Ring v. Arizona, 536 U.S. 584, 588-89, 595, 122 S. Ct.

2428, 2432, 2436 (2002) (overruling Walton). The defendant in Ring preserved his argument

about Arizona’s capital sentencing scheme even though that argument appeared foreclosed by

Walton.

12

Moreover, although this Court does not consider Blakely, now Booker,

issues not raised in any way in a party’s initial brief, we have liberally construed

what it means to raise a Blakely-type or Booker-type issue. See United States v.

Dowling, 403 F.3d 1242, 1246 (11 Cir. 2005) (evaluating whether a th

Blakely/Booker claim was made by reviewing whether a defendant: (1) referred to

the Sixth Amendment; (2) referred to Apprendi or another related case; (3)

asserted his right to have the jury decide the disputed fact; or (4) raised a challenge

to the role of the judge as factfinder with respect to sentencing factors). Levy

concedes he made no such claim in any manner until his petition for rehearing. 

Thus, the application of this Court’s prudential rule to foreclose defendant Levy’s

untimely Blakely, now Booker, claim does not result in manifest injustice.

IV. THE EFFECT OF SUPREME COURT REMANDS ON THE

APPLICATION OF THIS COURT’S PRUDENTIAL RULES

Finally, we discuss the specific remand order in Levy’s case. Since Booker,

the Supreme Court has remanded over a hundred of our Circuit’s cases with this

standard order or something similar: “The motion of petitioner for leave to

proceed in forma pauperis and the petition for writ of certiorari is granted. The
In other cases where a defendant timely raised a Sixth Amendment or Apprendi or 9

Blakely issue in the opening brief, as many defendants did prior to Booker, this Court has

considered the merits of those claims. See, e.g., United States v. Burge, 407 F.3d 1183 (11 Cir. th

2005); United States v. Martinez, 407 F.3d 1170 (11 Cir. 2005); United States v. Orduno- th

Mireles, 405 F.3d 960 (11 Cir. 2005); United States v. Camacho-Ibarquen, 404 F.3d 1283 (11 th th

Cir. 2005), opinion vacated and superceded by – F.3d –, 2005 WL 1297236 (11th Cir. June 2,

2005); United States v. Shelton, 400 F.3d 1325 (11 Cir. 2005). th

13

judgment is vacated and the case is 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. ___ (2005).” As noted above, this same order was used in

Levy’s remand. Obviously, some of these remands, including Levy, involved

cases in which this Court applied its prudential rules and refused to consider

defendant’s belated efforts to raise Blakely/Booker claims. See, e.g., Levy v.

United States, – S. Ct. –, 2005 WL 540692 (U.S. June 6, 2005) (No. 04-8942);

Sears v. United States, 125 S. Ct. 1348 (2005); Dockery v. United States, 125 S.

Ct. 1101 (2005). As noted above, Booker itself recognized that retroactivity is 9

subject to ordinary prudential rules, and thus nothing in Booker undermines or

affects our prudential rules; if anything, Booker contemplates that they should be

applied in Booker-remand cases.

Further, in a concurring opinion in Ardley, Judge Carnes explained another

reason why this type of general remand does not necessarily impinge on this

Court’s application of its prudential rules, as follows:
14

Whenever the Supreme Court decides an important issue of law, it

routinely takes every case in which the court of appeals decision came

out before the new decision was announced and in which the certiorari

petitioner claims that new decision might apply, and treats all of those

cases the same. The uniform treatment given all such cases is to vacate

the court of appeals judgment and remand the case for further

consideration in light of the new decision. Those boilerplate orders

come out in bushel baskets full. There is no implication in the standard

language of those orders that the court of appeals is to do anything

except reconsider the case now that there is a new Supreme Court

decision that may, or may not, affect the result. We have never felt

constrained to read anything into such routine remands other than the

direction that we take another look at the case because of the new

decision.

Ardley, 273 F.3d at 994 (Carnes, J., concurring in the denial of rehearing en banc). 

As this Court has now consistently concluded, the Supreme Court’s general

remand in these types of cases does not mandate any particular outcome as to the

defendant’s sentence, nor do they preclude this Court from applying its prudential

rules in a uniform and consistent manner. See Pipkins, 2005 WL 1421449, at *2;

Sears, 2005 WL 1334892, at *1; Dockery, 401 F.3d at1262-63; Ardley, 273 F.3d

at 995 (Carnes, J., concurring in the denial of rehearing en banc).

Instead, what is required is that we take another look at this case and

consider it in light of Booker. We have done so, and, consistent with Booker and

our case law, we affirm Levy’s sentences for the reasons outlined herein and in our

prior opinions. We also reinstate our prior panel opinion affirming Levy’s
15

sentences in United States v. Levy, 374 F.3d 1023 (11 Cir. 2004), and, to the th

extent necessary, our opinion denying Levy’s petition for rehearing by the panel in

United States v. Levy, 379 F.3d 1241 (11 Cir. 2004). th

AFFIRMED and PRIOR OPINIONS REINSTATED.