FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 20, 2005

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 02-14306

________________________

D. C. Docket No. 01-00074 CR-1-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES FLOYD PIPKINS,

a.k.a. Sir Charles,

ANDREW MOORE, JR.,

a.k.a. Batman,

Defendants-Appellants.

________________________

Appeals from the United States District Court

for the Northern District of Georgia

_________________________

(June 20, 2005)

ON REMAND FROM THE

 SUPREME COURT OF THE UNITED STATES

Before EDMONDSON, Chief Judge, DUBINA, and COX, Circuit Judges.

PER CURIAM:
2

The Supreme Court vacated our previous opinion in this case, United States v.

Pipkins, 378 F.3d 1281 (11th Cir. 2004), vacated at ___U.S.___, 125 S. Ct. 1617

(2005), and remanded this case for further consideration in light of United States v.

Booker, ___U.S.___, 125 S. Ct. 738 (2005). 

We directed the parties to file supplemental briefs to explain when the

Defendants first raised the Booker issue, whether the issue was timely raised before

this court, and how the Booker decision applies to this case. In their supplemental

briefs, the Defendants contend that we should vacate theirsentences and remand their

cases to the district court for re-sentencing in light of Booker. The Defendants note

that they first challenged the constitutionality of their sentences in their Petitions for

Rehearing En Banc. In these Petitions, the Defendants asserted that the district court

made various factual findings which the court used to enhance their sentences. They

argue that these findings were not found by a jury beyond a reasonable doubt, as

required by Blakely v. Washington,___U.S.___, 125 S. Ct. 2531 (2005). Thus, the

Defendants contend they are entitled to re-sentencing. The Government responds that

the Defendants’ constitutional arguments were not timely raised before this court

because they were not included in their initial briefs. Because we conclude that the

Defendants’ constitutional arguments were not timely raised, we reinstate our

previous opinion affirming the Defendants’ convictions and sentences.
3

The Defendants, Charles Floyd Pipkins and Andrew Moore, two Atlanta pimps,

were convicted of conspiracy to violate the Racketeering Influenced Corrupt

Organizations Act (“RICO”), and other offenses. Pipkins’ total sentence of

imprisonment was 30 years and Moore’s total sentence was 40 years. We must first

determine whether the Defendants’ constitutional challenges to their sentences were

timely. The well-established law in our circuit requires that issues be raised in the

parties’ initial brief. See United States v. Levy, 379 F.3d 1241 (11th Cir.), reh’g en

banc denied, 391 F.3d 1327 (11th Cir. 2004). 

Pipkins and Moore first challenged the constitutionality of their sentences in

their Petitions for Rehearing En Banc. In these Petitions, the Defendants argued that

the Supreme Court’s opinion in Blakely invalidated their sentences. The Defendants

contend that they failed to raise this issue in their initial briefs because our precedent

at the time categorically precluded an Apprendi-type challenge. See United States v.

Sanchez, 269 F.3d 1250, 1262-63 (11th Cir. 2001) (en banc) (“Apprendi does not

apply to judge-made determinations pursuant to the Sentencing Guidelines.”). But

the Defendants’ failure to make their argument in their initial brief is not excused by

the fact that our precedent was then to the contrary. Even if our precedent at the time

foreclosed their argument, the Defendants still had to raise this issue in their initial

brief and assert that our precedent was wrongly decided in order for us to consider it.
4

It is through this process that the law evolves. By making such an argument in their

initial brief to this court, the Defendants would have preserved their argument for

further appellate review, both in this court and in the Supreme Court. See Levy, 379

F.3d at 1243 n.3 (noting that “while Levy may not have predicted the Supreme

Court’s ultimate conclusions in Blakely, it is also true that the general argument that

a jury must determine all facts regarding sentence enhancements was available to

Levy and indeed made by defendants ever since the Sentencing Guidelines came into

being”). 

We have a long-standing rule that we will not consider issues that were argued

for the first time in a petition for rehearing, and we adhere to that rule today. See

Levy, 379 F.3d at 1242. Moreover, there is nothing in the Supreme Court’s remand

order that requires us to treat this case as though the issue had been timely raised in

this court. See United States v. Dockery, 401 F.3d 1261, 1262 (11th Cir. 2005)

(quoting United States v. Ardley, 242 F.3d 989 (11th Cir. 2001)). And, the Supreme

Court made clear in Booker that we are to apply our “ordinary prudential doctrines”

in considering these types of challenges to sentences. Booker, ___U.S. at ___, 125

S. Ct. at 769. Our ordinary prudential doctrine requiring parties to raise all issues in

their initial briefs precludes us from addressing the Defendants’ arguments asserted

for the first time before this court in their Petitions for Rehearing en Banc. 
5

Our opinion affirming the defendants’ convictions and sentences, United States

v. Pipkins, 378 F.3d 1281 (11th Cir. 2004), is, therefore, REINSTATED.