FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 September 2, 2004 

 THOMAS K. KAHN 

 CLERK

Honorable Clay D. Land, United States District Judge for the Middle District of *

Georgia, sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 03-13117

________________________

D. C. Docket No. 02-00154 CR-2-N-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERIC ORLANDO REESE,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(September 2, 2004)

Before ANDERSON and BIRCH, Circuit Judges, and LAND , District Judge. *

ANDERSON, Circuit Judge:

Eric Orlando Reese appeals his conviction and sentence imposed for being a
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felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). A jury

convicted Reese of this offense on December 16, 2002. At sentencing, the district

court imposed a four-level enhancement pursuant to USSG § 2K2.1(b)(5),

possessing a firearm in connection with another felony, because officers found

28.40 grams of cocaine base, 1.75 grams of marijuana, and a digital scale in the

glove compartment of the automobile in which the firearm was located. The

district court also imposed a two-level enhancement pursuant to USSG §

2K2.1(b)(4) because the firearm was stolen. Reese timely appealed. He challenges

on appeal: 1) the sufficiency of the evidence to support his underlying conviction;

and 2) the fact that the factual finding supporting his four-level enhancement

imposed pursuant to 2K2.1(b)(5) was made by the district court instead of by the

jury.

After oral argument and careful consideration, we reject without need for

further discussion Reese’s challenge to the sufficiency of the evidence supporting

his underlying conviction for being a felon in possession of a firearm in violation

of 18 U.S.C. § 922(g)(1).

Reese’s remaining argument in his initial brief is that the district court

invaded the province of the jury by finding that the firearm was possessed in

connection with another felony offense. Reese sufficiently and timely raised this
In his initial brief, Reese made the Apprendi-type argument only with respect to 1

the § 2K2.1(b)(5) enhancement (four levels because the firearm was possessed in connection

with another felony). He did not raise this issue with respect to the stolen firearm enhancement

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constitutional objection based upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.

Ct. 2348 (2000), in the district court. See United States v. Candelario, 240 F.3d

1300, 1304 (11th Cir. 2001). Because Reese made a timely constitutional

objection, he is entitled to the benefit of preserved error review. See id. 

After the initial briefing in this case, the Supreme Court decided Blakely v.

Washington, ___ U.S. ___, 124 S. Ct. 2531 (June 24, 2004). In Blakely, the

Supreme Court applied the rule set out in Apprendi, and held that the imposition –

based solely on the sentencing judge's factual findings – of a sentencing

enhancement above the 53 month standard range indicated in the State of

Washington's Sentencing Reform Act violated Blakely's Sixth Amendment rights

because the facts supporting the findings were neither admitted by Blakely nor

found by a jury beyond a reasonable doubt. Because Reese raised in his initial

brief a similar challenge to that raised by Blakely – namely that the factual finding

supporting the enhancement should have been made by the jury beyond a

reasonable doubt instead of by the sentencing judge – we ordered supplemental

briefing with respect to the impact of Blakely on the Federal Sentencing Guidelines

("Guidelines") as applied in this case. Because Reese preserved this argument

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imposed pursuant to § 2K2.1(b)(4). Reese did not challenge the § 2K2.1(b)(4) enhancement in

any way in his initial brief, a fact that he concedes in his supplemental brief, stating that this

enhancement was not “specifically referenced or challenged by counsel on appeal.” Accordingly,

Reese is not entitled to have this court entertain any argument with respect to the § 2K2.1(b)(4)

enhancement. See United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000) ("Defendant

abandoned the [Apprendi] indictment issue by not raising the issue in his initial brief."); 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."); United States v. Curtis,

___ F.3d ___, 2004 WL 1774785 (11th Cir. Aug. 10, 2004) (order declining to permit a

supplemental brief raising a Blakely issue for the first time, following Nealy and Ford). 

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below, we must determine the impact of the Supreme Court's opinion in Blakely on

the Guidelines. 

The most significant aspect of Blakely was the Supreme Court's change with

respect to the underlying assumption of what constitutes the relevant maximum for

Apprendi purposes. The Court in Blakely looked to the standard range for second

degree kidnaping as stated in the Washington Sentencing Guidelines, 53 months,

instead of the 10 years authorized under another Washington statute for class B

felonies. Blakely, 124 S. Ct. at 2537. As noted by the Fifth Circuit in United

States v. Pineiro, 377 F.3d 464 (5th Cir. July 12, 2004), the constitutional fate of

the Guidelines after Blakely depends upon whether they are viewed: 1) like the

Washington statute as defining different offenses with different maximum

sentences, such that a Guideline sentencing range unenhanced by judicial fact

finding sets a "maximum sentence" for purposes of Apprendi; or 2) as a tool for

channeling the sentencing court's discretion within a specific crime's minimum and
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maximum sentence provided in the United States Code, with that maximum being

the only constitutionally relevant "maximum sentence." Pineiro, 377 F.3d at 470.

After canvassing the relevant Supreme Court precedent – including Mistretta

v. United States, 488 U.S. 361, 396, 109 S. Ct. 647, 667 (1989); Edwards v. United

States, 523 U.S. 511, 513-15, 118 S. Ct. 1475, 1477-78 (1998), as well as United

States v. Cotton, 535 U.S. 625, 633 n.3, 122 S. Ct. 1781, 1786 n.3 (2002); Witte v.

United States, 515 U.S. 389, 399, 115 S. Ct. 2199, 2206 (1995); and United States

v. Watts, 519 U.S. 148, 156-57, 117 S. Ct. 633, 637-38 (1997) – and expressing

doubt that the Guidelines were intended to create hundreds of different “Apprendi”

offenses corresponding to the myriad permutations under the Guideline factors, the

Fifth Circuit concluded that Supreme Court precedent prior to Blakely supported

the view that the Guidelines were a tool for channeling sentencing discretion and

that Blakely did not compel departure from the long-embraced distinction drawn in

the precedent between the Guideline ranges and the maxima established in the

United States Code for the various offenses. Pineiro, 377 F.3d at 470-73. The very

recent en banc decision of the Sixth Circuit notes additional and persuasive reasons

supporting the view that Blakely does not give license to lower courts to depart

from this previous Supreme Court precedent. United States v. Koch, ___ F.3d ___,

2004 WL 1899930 (6th Cir. Aug. 26, 2004).
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We agree with the Fifth Circuit in Pineiro and the Sixth Circuit in Koch that

Blakely does not compel a departure from previous Supreme Court precedent and

the precedent of our own circuit culminating in United States v. Sanchez, 269 F.3d

1250 (11th Cir. 2001). We add to the discussion already extant in the opinions of

the Fifth and Sixth Circuits only the following comments about Edwards. As we

discussed in United States v. Duncan, ___ F.3d ___, 2004 WL 1838020 (11th Cir.

Aug. 18, 2004), the petitioners/defendants in Edwards challenged the district

court's finding at their sentencing hearing that the drug conspiracy involved both

cocaine and crack; they challenged the judge’s authority to so find, because the

jury had returned only a general verdict, and the district court had instructed the

jury that the government needed to prove the conspiracy involved cocaine or crack. 

Edwards, 523 U.S. at 513, 118 S. Ct. at 1476-77. The Supreme Court quickly

dismissed the argument that the district court was not authorized to make this

determination under the Guidelines. Id. at 513-14, 118 S. Ct. at 1477. The

Supreme Court then dismissed the petitioners' claims under the statute and the

Constitution, including a Sixth Amendment challenge. See id. at 514-15, 118 S. Ct.

at 1477-78; Brief for Petitioners at 30-39, Edwards v. United States, 523 U.S. 511,

118 S. Ct. 1475 (1998) (No. 96-8732). As part of that discussion the Supreme

Court stated:
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Of course, petitioners' statutory and constitutional claims would 

make a difference if it were possible to argue, say, that the 

sentences imposed exceeded the maximum that the statutes permit

for a cocaine-only conspiracy. That is because a maximum 

sentence set by statute trumps a higher sentence set forth in the 

Guidelines. USSG § 5G1.1. But, as the Government points out, 

the sentences imposed here were within the statutory limits applicable

to a cocaine-only conspiracy, given the quantities of that drug 

attributed to each petitioner. 

Edwards, 523 U.S. at 515, 118 S. Ct. at 1477-78. 

It is clear from the above language that the Supreme Court in Edwards

viewed the maximum listed in the United States Code as the relevant maximum for

Sixth Amendment purposes instead of the range listed in the Federal Sentencing

Guidelines. Not only is the language of the opinion itself clear, it is also true that if

the Supreme Court had been focusing on the Guidelines to provide the relevant

maximum, some of the Edwards petitioners' sentences (involving cocaine and

crack) would have exceeded the range under the Guidelines for a cocaine-only

conspiracy. See Brief for Petitioners at 4; Edwards v. United States, 523 U.S. 511,

118 S. Ct. 1475 (1998) (No. 96-8732) (listing for each petitioner the district judge's

findings with respect to drug type and quantity, the base offense level, the total

offense level, the Guidelines range, and the sentence imposed); Brief for the

United States at 5-6, Edwards v. United States, 523 U.S. 511, 118 S. Ct. 1475

(1998) (No. 96-8732) (listing for each petitioner the district judge's findings with
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respect to drug type and quantity); United States Sentencing Commission,

Guidelines Manual, § 2D1.1(c) (Nov. 1994). 

We are aware that Edwards was decided prior to Apprendi; however, that

decision seems to approve Edwards, not question it. In Apprendi the Supreme

Court indicated in a footnote that the Guidelines were not before the Court and that

Apprendi therefore expressed no view on the Guidelines other than what the Court

had already held. The Supreme Court then cited Edwards and included a

parenthetical quoting the following language from Edwards:

Of course, petitioners' statutory and constitutional claims would 

make a difference if it were possible to argue, say, that the 

sentences imposed exceeded the maximum that the statutes permit

for a cocaine-only conspiracy. That is because a maximum 

sentence set by statute trumps a higher sentence set forth in the 

Guidelines.

Apprendi, 530 U.S. at 497 n.21, 120 S. Ct. at 2366 n.21.

Although it is true that there was no argument in Edwards to the effect that

the maxima set out in the various Guidelines provisions constituted the relevant

maximum for Sixth Amendment purposes, nevertheless, the Supreme Court did

reject a Sixth Amendment challenge to the judicial fact finding there with respect

to a sentence below the statutory maximum set out in the United States Code. In

light of Edwards and our own precedent in Sanchez, the additional cases and
The Supreme Court has scheduled oral argument on this issue for October 4, 2

2004. See United States v. Booker, ___ S. Ct. ___, 2004 WL 1713654 (U.S. Aug. 2, 2004);

United States v. Fanfan, ___ S. Ct. ___, 2004 WL 1713655 (U.S. Aug. 2, 2004). 

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reasoning discussed by the Fifth Circuit in Pineiro and the Sixth Circuit in Koch, as

well as the Supreme Court's express avoidance of this issue with respect to the

Guidelines in the Blakely opinion itself, we decline to conclude that Blakely

compels an alteration of the established view of the Guidelines as a tool for

channeling the sentencing court's discretion within a crime's minimum and

maximum sentence provided in the United States Code, with that maximum being

the only constitutionally relevant maximum sentence. Therefore, the district court

did not err in imposing the four-level enhancement pursuant to USSG §

2K2.1(b)(5). We hold that district courts should continue to sentence pursuant to

the Guidelines until such time as the Supreme Court rules on this issue. In so 2

holding, we join the Second, Fourth, Fifth, and Sixth Circuits. See United States v.

Mincey, ___ F.3d ___, 2004 WL 1794717 (2d Cir. Aug. 12, 2004); United States v.

Hammoud, 378 F.3d 426 (4th Cir. Aug. 2, 2004); Pineiro, 377 F.3d 464; Koch, ___

F.3d ___, 2004 WL 1899930. 

We acknowledge that two circuits have held that Blakely does apply to the

Guidelines, and that it is very difficult to predict whether the Supreme Court will

apply Blakely to the Guidelines, and, if it does, whether it will hold that the
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Guidelines fall in their entirety or only in part. In light of this instability, we

recognize that district courts might deem it wise and appropriate to take protective

steps in case the Guidelines are later found unconstitutional in whole or in part. 

However, we are reluctant to provide specific advice with respect to what

protective steps, if any, might be appropriate to reduce confusion and protect

against duplicative judicial efforts should the Supreme Court so rule. We realize

that such appropriate and feasible steps might vary with each individual case. 

For the foregoing reasons, Reese’s conviction and sentence are 

AFFIRMED.