FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 February 24, 2005 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 03-15315

________________________

D. C. Docket No. 02-00020 CR-3-RV

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARCO D. DUNCAN,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the

 Northern District of Florida

_________________________

(February 24, 2005)

ON PETITION FOR REHEARING

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

________________

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

by designation.
In his initial brief, Duncan made this Apprendi-type argument only with respect to 1

the drug type issue, and not with respect to the other two enhancements referenced in any of the

briefs, i.e., the firearm and role enhancements. Accordingly, he is not entitled to have this Court

entertain the argument with respect to those other two enhancements. See United States v. Levy, 

379 F.3d 1241(11th Cir. 2004) (holding that defendant waived his Blakely claim as issue on

appeal by failing to raise it in his initial brief); 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

2

ANDERSON, Circuit Judge:

The panel's opinion in this case issued on August 18, 2004, and was

published in 381 F.3d 1070 (11th Cir. 2004). A petition for rehearing en banc was

filed. We construe it also as a petition for rehearing by the original panel. We now

grant panel rehearing, vacate the previous opinion published in 381 F.3d 1070, and

substitute in its stead the instant opinion. In this opinion, we focus on Duncan's

sentencing argument, reviewing for plain error in light of the Supreme Court's

decision in United States v. Booker, 542 U.S. __, 125 S. Ct. 738 (2005). We 

conclude that Duncan cannot overcome the third prong of plain error analysis

because he cannot show an error that affected his substantial rights. See United

States of America v. Rodriguez, ___F.3d.____, 2005 WL 272952 (11th Cir. Feb. 4,

2005).

In his initial brief on appeal, Duncan argued that the jury and not the district

court judge should have made the determination of the type and quantity of drugs

involved in a drug conspiracy for the purpose of sentencing. After the initial 1
established rule is that issues and contentions not timely raised in the briefs are deemed

abandoned."); United States v. Curtis, 380 F.3d 1308 (11th Cir. 2004) (declining to permit a

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

Moreover, even in his supplemental brief Duncan focuses on the drug type finding, barely

mentioning the other two enhancements, and even that mention is both conclusory and vague. 

We readily conclude that Duncan has abandoned any Blakely challenge except with respect to the

drug type.

3

briefing in this case, the Supreme Court decided Blakely v. Washington, 542 U.S.

___, 124 S. Ct. 2531 (2004), and accordingly, we ordered supplemental briefing

on the issue. In Blakely, the Supreme Court applied the rule set out in Apprendi v.

New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and held that the imposition –

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

enhancement above the 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. In

our initial opinion, we reviewed Duncan's sentence for plain error and concluded

that the district court could not have committed "plain" error by failing to apply

Blakely in the context of the Federal Sentencing Guidelines ("Guidelines").

After our initial opinion, the Supreme Court decided United States v.

Booker, 542 U.S. at __, 125 S. Ct. 738 (2005). In Booker, the Supreme Court

issued two separate majority opinions. Id. First, Justice Stevens wrote for the

Court and held that the rule announced in Blakely applied to the Guidelines. 
4

Booker, 542 U.S. __, 125 S. Ct. at 745. He based his opinion on the premise that

the Guidelines were mandatory and imposed binding requirements on all

sentencing judges. Id. at ___, 125 S. Ct. at 749. Second, and in light of Justice

Stevens’ holding, Justice Breyer wrote for the Court and invalidated two

provisions of the Sentencing Reform Act of 1984 that had the effect of making the

Guidelines mandatory. Id. at ___, 125 S.Ct at 756. The Court instructed that both

holdings – the Sixth Amendment holding and the remedial interpretation of the

Sentencing Act – should be applied to all cases on direct review. Id. at 769. We

requested and received supplemental briefs addressing the effect of the Supreme

Court's decision in Booker. We now consider Duncan's claim in light of Booker. 

On February 20, 2002, the appellant, Marco D. Duncan, and several other

co-defendants were charged with conspiracy to distribute and to possess with

intent to distribute five kilograms or more of cocaine and fifty grams or more of

cocaine base, pursuant to 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and 21 U.S.C. §

846. The indictment also alleged a criminal forfeiture count. Prior to trial,

Duncan filed a motion to suppress all evidence obtained from the search of his

vehicle at the time of his arrest. The district court denied the motion. 

Duncan's trial commenced on July 21, 2003. The jury found Duncan guilty

as charged, and by a special verdict found beyond a reasonable doubt that the
In light of Duncan’s criminal history, category IV, and with the other 2

enhancements, see for example note 1, supra, the Guidelines indicated a life sentence.

A bifurcated forfeiture proceeding was conducted, and the jury returned a 3

forfeiture verdict of $340,000 against the defendant. 

5

conspiracy involved five kilograms or more of cocaine, but found that the

government failed to prove beyond a reasonable doubt that the conspiracy

involved fifty grams or more of cocaine base. At sentencing, the district court

calculated Duncan's base offense level by finding that a portion of cocaine

powder had been converted into 12.24 kilograms of cocaine base, or crack. Had

Duncan's base offense level been calculated solely using the jury's special verdict,

his base offense level would have been 32 instead of 38 under the Guidelines.

 However, the district court set the base offense level at 38 stating, "I

certainly find from the evidence, by a preponderance at least, and actually more

than that, that Mr. Duncan knew and it was reasonably foreseeable to him that it

was being converted into crack cocaine, most of it converted, and sold in that

form." On October 10, 2003, the district court sentenced Duncan to life

imprisonment and ordered forfeiture in the amount of $340,000. Duncan timely

2 3

appealed.

Duncan raised various arguments with respect to his conviction, sentence,

and forfeiture. After oral argument and careful consideration, we reject without
With respect to these other sentencing arguments, Duncan also failed to raise an

4

Apprendi-type objection in the district court or in his initial brief on appeal. See note, 1, supra.

6

need for further discussion the following arguments asserted by Duncan on appeal: 

(1) that the district court erred by denying his motion to suppress the evidence

obtained from the April 21, 2003 search; (2) that the district court erred by

enhancing his sentence two levels for the possession of a firearm; (3) that the

district court erred by enhancing his sentence four levels based upon his role in the

offense; and (4) that the forfeiture count of the indictment failed to set forth with 4

the specificity required by the Fifth Amendment Due Process Clause the property

that the Government claimed was obtained as a result of the alleged conspiracy. 

Duncan's remaining argument on appeal is that the special verdict by the

jury, finding that the conspiracy involved only cocaine powder, precluded the

district court from sentencing Duncan based, in part, on its finding that the offense

involved 12.24 kilograms of cocaine base, or crack. Duncan failed to raise this

issue in the district court at any time, either during the trial or at sentencing. 

Although Duncan did object below to the setting of the base offense level pursuant

to a finding of cocaine base instead of cocaine powder, his argument below was

limited to a sufficiency of the evidence argument that it was impossible to

determine from the evidence what quantity of the cocaine powder had been
7

cooked into crack. That Duncan's objection below was limited to the sufficiency

of the evidence indicating cocaine base and did not include any type of objection

based upon the Sixth Amendment is clear from his written objections to his

Presentence Investigation Report ("PSI") as well as the transcript from the

sentencing hearing. Therefore, because Duncan failed to raise a Sixth Amendment

argument below, our review is limited to determining whether setting the base

offense level based on a judicial finding of cocaine base constitutes plain error in

light of the Supreme Court's holding in Booker. See United States v. Candelario,

240 F.3d 1300, 1308 (11th Cir. 2001) (noting that where a defendant did not make

an Apprendi-based objection before the district court at sentencing, review is

limited to plain error review, and that a sufficiency of the evidence objection is not

a constitutional objection); United States v. Sanchez, 269 F.3d 1250, 1280 (11th

Cir. 2001) (en banc) (applying plain error review where Apprendi claim raised for

the first time on appeal). The fact that Booker was decided subsequent to the

judgment in the district court does not alter our use of the plain error standard. 

See United States v. Cotton, 535 U.S. 625, 122 S. Ct. 1781 (2002) (applying plain

error to an Apprendi claim where Apprendi was decided while the appeal was

pending in the Fourth Circuit); Johnson v. United States, 520 U.S. 461, 117 S. Ct.

1544 (1997) (applying plain error review to the issue of whether the materiality of
8

a false statement was an element of an offense such that it had to be submitted to a

jury where the argument was first raised on appeal and was based upon a case

decided by the Supreme Court after the defendant's conviction but before her

appeal). Indeed, the Supreme Court in Booker expressly directed appellate courts

to “apply ordinary prudential doctrines,” including plain error, in conducting

review of Booker errors. Booker, 542 U.S. __, 125 S. Ct. at 769. 

We have discretion to correct an error under the plain error standard where

(1) an error occurred, (2) the error was plain, (3) the error affected substantial

rights, and (4) the error seriously affects the fairness, integrity or public reputation

of judicial proceedings. United States v. Olano, 507 U.S. 725, 732-36, 113 S. Ct.

1770, 1777-79 (1993). 

In United States v. Rodriguez, we applied plain error analysis in light of

Booker to a claim that the defendant's sentence violated his Fifth and Sixth

Amendment rights because it was based on a judge's finding of facts that were

neither charged in an indictment nor proven to a jury. __ F.3d. __, 2005 WL

272952 (11th Cir. Feb 4, 2005). The Rodriguez opinion stated that, after Booker,

a sentence enhancement based on a fact, other than a prior conviction, found

solely by the judge in a mandatory guideline system met the first and second

prongs of the plain error test. Id. at *7. The court stated that the error was not that
9

there were "extra-verdict enhancements" that led to an increase in the defendant's

sentence, but rather that those enhancements were applied in a mandatory

guideline system. Id. at *8. 

The court in Rodriguez held that the defendant in that case could not

overcome the third prong of the plain error test because he could not show that the

error – applying the Guidelines as mandatory instead of as advisory – "affected

substantial rights." Id. at *10. The court stated that for an error to have "affected

substantial rights," it must have affected the outcome of the district court

proceedings. Id. at *7 (citing United States v. Cotton, 535 U.S. at 632, 112 S. Ct.

at 186). Applying the third prong, the court asked "[w]hether there is a reasonable

probability of a different result if the guidelines had been applied in an advisory

instead of binding fashion by the sentencing judge in this case." Id. at *9. The

court stated that it did not know what the result would have been if the sentencing

judge had applied the Guidelines in an advisory manner. Id. The court

emphasized that the defendant bore the burden of persuasion with respect to

prejudice, and that where the effect of an error was uncertain, the defendant could

not meet his burden because he could not show a reasonable probability that the

result would have been different but for the error. Id. at *10 (citing United States

v. Jones, 527 U.S. 373, 394-95, 119 S. Ct. 2090, 2105 (1999)).
Justice Stevens acknowledged that there would have been no Sixth Amendment 5

constitutional violations in the cases before them if the Guidelines were advisory. "Indeed,

everyone agrees that the constitutional issues presented by these cases would have been avoided

10

Duncan argues that the error committed in his case is that the district court

imposed a sentence greater than the maximum authorized by the facts found by the

jury alone, violating the principle announced in Booker. Duncan states that the

facts found by the jury authorized the judge to apply a sentence within the range of

an offense level of 32 in the Guidelines, and the district court committed error by

imposing a sentence greater than what is authorized by offense level 32. Duncan

concludes that the sentencing court's error substantially affected his rights because

the sentence imposed exceeded that which is authorized by an offense level 32 in

the Guidelines. 

As Rodriguez suggests, Duncan's argument misstates the error committed

by the sentencing judge. Id. at *8 ("The error that was committed in pre-Booker

sentencing, like that which occurred in this case, is not that there were extraverdict enhancements. . . . The error is that there were extra-verdict enhancements

used in a mandatory guidelines system."). Rodriguez explains how we know that

the same enhancements made in a non-mandatory Guidelines system are

constitutionally permissible, and thus how we know that the error was the failure

to treat the Guidelines as advisory:5
entirely if Congress had omitted from the SRA the provisions that make the Guidelines binding

on district judges; it is that circumstance that makes the Court's answer to the second question

presented possible. For when a trial judge exercises his discretion to select a specific sentence

within a defined range, the defendant has no right to a jury determination of the facts that the

judge deems relevant." 542 U.S. at ___, 125 S. Ct. at 750. 

11

One reason is that Justice Stevens' majority opinion in

Booker explicitly tells us that: "If the Guidelines as

currently written could be read as merely advisory

provisions that recommended, rather than required, the

selection of particular sentences in response to differing

sets of facts, their use would not implicate the Sixth

Amendment." Booker, 125 S. Ct. at 750; id. at 764

(Breyer, J., maj.op.) ("[W]ithout this provision – namely

the provision that makes the relevant sentencing rules

mandatory and imposes binding requirements on all

sentencing judges – the statute falls outside the scope of

Apprendi‘s requirement." (internal quotation omitted)).

The other reason we know that the use of extra-verdict

enhancements in a non-mandatory guidelines system is

not unconstitutional is that the other Booker majority

opinion, the one authored by Justice Breyer, specifically

provides for extra-verdict enhancements in all future

sentencings. Id. at 764-65. The Court specifically held

that the guidelines system was constitutional once two

parts of the Sentencing Reform Act were excised: the

part in 18 U.S.C. § 3553(b)(1) making the guidelines

result binding on the sentencing court; and the part in §

3742(e) requiring de novo review of sentences on appeal.

Id. at 764.

Id. at *9.

Necessarily implied in the Rodriguez analysis is the fact that appellate
In identifying the relevant error, the Rodriguez panel applied both Booker 6

holdings retroactively.

12

courts should apply retroactively both Booker holdings. Indeed, the Opinion of 6

the Court announced by Justice Breyer expressly mandates this. 542 U.S. __, 125

S. Ct. at 769 (“As these dispositions indicate, we must apply today's holdings –

both the Sixth Amendment holding and our remedial interpretation of the

Sentencing Act – to all cases on direct review.”). In the same breath, Justice

Breyer directs appellate courts to apply “ordinary prudential doctrines,” including

the plain error rule. Id. Thus, Rodriguez’ plain error analysis faithfully follows

these Supreme Court directions. 

When Justice Breyer's opinion is retroactively applied on direct review, the

Guidelines are deemed to have been "effectively advisory." Booker, 542 U.S. __,

125 S. Ct. at 757. This means that the various top ranges of the Guidelines are no

longer binding, and therefore, no longer constitute "little relevant maximums." 

This leaves as the only maximum sentence the one set out in the United States

Code. Justice Breyer's opinion making the Guidelines advisory essentially

changes what sentence is authorized by a jury verdict – from the sentence that was

authorized by mandatory Guidelines to the sentence that is authorized by the U.S.

Code. 
13

In Duncan's case, the U.S. Code authorizes a sentence of up to life

imprisonment based on the jury's finding that he possessed at least 5 kilograms of

cocaine powder. See 21 U.S.C. § 841(b)(1)(A)(ii)(I). Duncan’s life sentence, of

course, falls within this maximum. And this life sentence does not run afoul of

Justice Stevens’ holding, which also has to be applied retroactively. When Justice

Breyer’s holding is applied retroactively, the maximum sentence authored by

Duncan’s jury verdict is life; thus, Duncan’s life sentence does not violate Justice

Stevens’ holding that "[a]ny fact . . . which is necessary to support a sentence

exceeding the maximum authorized by the facts established by a plea of guilty or a

jury verdict must be admitted by the defendant or proved to a jury beyond a

reasonable doubt." Booker, 542 U.S. __, 125 S. Ct. at 756. 

Duncan essentially asks this court to apply Justice Stevens’ opinion in

Booker retroactively, but refuse to apply Justice Breyer's opinion in Booker

retroactively. Yet, in Booker, the Supreme Court expressly stated that both

holdings should be applied to cases on direct review. 542 U.S. __, 125 S. Ct. at

769. The only error that remains after applying both Booker holdings

retroactively is the fact that the judge perceived that the Guidelines were

mandatory, when in fact they are now deemed to have been advisory. Rodriguez,

2005 WL 272952 at *8. 
14

Like the defendant in Rodriguez, Duncan can meet the first two prongs of

plain error analysis. The sentencing judge applied the Guidelines as if they were

mandatory, and that constitutes error which is "clearly contrary to the law at the

time of appeal" after Booker. Id. at *7 (citing Johnson v. United States, 520 U.S.

461, 468, 117 S. Ct. 1544, 1549 (1977)). Duncan, however, cannot meet the third

prong of plain error review because he cannot show that this error affected his

substantial rights. In his brief addressing Booker, Duncan acknowledges that "[i]t

is simply impossible to determine whether the district court would have imposed

the same sentence under a discretionary Guideline scheme." As indicated by

Rodriguez, Duncan bears the burden of persuasion with respect to prejudice. Id.

Duncan does not point to anything indicating "a reasonable probability of a

different result if the guidelines had been applied in an advisory instead of binding

fashion," and therefore cannot meet his burden. Id. at *9. 

The only legal issue that distinguishes the sentence imposed in Duncan's

case from the sentence imposed in Rodriguez is that the jury in Duncan's case

issued a special verdict that found Duncan guilty of conspiracy to distribute and

possess with intent to distribute five kilograms or more of cocaine, but did not find

him guilty of the same charge with respect to fifty grams or more of cocaine base.

The district court enhanced Duncan's sentence based, in part, on a finding that
15

some of the cocaine powder had been converted into over 12 kilograms of cocaine

base, a finding that the jury had declined to make beyond a reasonable doubt. This

does not change our analysis.

Our Circuit's precedent uniformly states, "[r]elevant conduct of which a

defendant was acquitted nonetheless may be taken into account in sentencing for

the offense of conviction, as long as the government proves the acquitted conduct

relied upon by a preponderance of the evidence." United States v. Barakat, 130

F.3d 1448, 1452 (11th Cir. 1997) (citing United States v. Watts, 519 U.S. 148,

153, 117 S. Ct. 633, 636 (1997); United States v. Frazier, 89 F.3d 1501, 1506

(11th Cir. 1996); United States v. Averi, 922 F.2d 765, 766 (11th Cir. 1991)). In

United States v. Watts, the Supreme Court held that the Double Jeopardy Clause

permitted a court to consider acquitted conduct in sentencing a defendant under

the Guidelines because "consideration of information about the defendant's

character at sentencing does not result in 'punishment' for any offense other than

the one of which the defendant was convicted." 519 U.S. 148, 155, 117 S. Ct. 

633, 636 (1997) (citing Witte v. United States, 515 U.S. 389, 401, 115 S. Ct. 2199,

2207 (1995)). Booker does not suggest that the consideration of acquitted conduct

violates the Sixth Amendment as long as the judge does not impose a sentence that
In his Booker opinion, Justice Stevens discusses Watts, and concludes that it "is 7

not inconsistent with today's decision." Booker, 542 U.S. at ___, 125 S. Ct. at 754. Justice

Stevens, however, acknowledges that the case did not involve "any contention that the sentencing

enhancement had exceeded the sentence authorized by the jury verdict in violation of the Sixth

Amendment." Id.

16

exceeds what is authorized by the jury verdict. Thus, nothing in Booker erodes 7

our binding precedent. Booker suggests that sentencing judges can continue to

consider relevant acquitted conduct when applying the Guidelines in an advisory

manner, "[f]or when a trial judge exercises his discretion to select a specific

sentence within a defined range, the defendant has no right to a jury determination

of the facts that the judge deems relevant." Booker, 542 U.S. at __, 125 S. Ct. at

750. Here, applying Justice Breyer's opinion retroactively, we conclude that the

jury verdict authorized life imprisonment. Therefore, we conclude that it was not

error for the sentencing judge to find a fact that had been acquitted by the jury

when determining Duncan's sentence. 

We are aware of the opinions recently issued by the Fourth, Sixth, and Ninth

Circuits stating that defendants in Duncan’s position met plain error review and

remanding their cases for resentencing in light of Booker. See United States v.

Ameline, __F.3d__, 2005 WL 350811 (9th Cir. Feb. 10, 2005) (reviewing Booker

issue sua sponte and holding, upon rehearing, that defendant's sentence violated

Booker because district court applied Guideline enhancements based on judicial
17

factfinding that went beyond the facts admitted by defendant in his plea); United

States v. Oliver, __F.3d__, 2005 WL 233779 (6th Cir. Feb. 2, 2005) (finding the

district court plainly erred by increasing defendant's sentence pursuant to the

Guidelines based upon the judge-found fact of defendant's pretrial flight from a

residential halfway house); United States v. Hughes, __ F.3d__, 2005 WL 147059

(4th Cir. Jan.24, 2005) (vacating and remanding defendant's pre-Booker sentence

under plain-error review because district court had not yet had an opportunity to

impose a sentence under an advisory guideline system). We decline to follow

those opinions for several reasons. First, we are bound to follow this Circuit’s

precedent in Rodriguez. Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11 Cir. th

2001) (“Under the well-established prior panel precedent rule of this Circuit, the

holding of the first panel to address an issue is the law of this Circuit, thereby

binding all subsequent panels unless and until the first panel’s holding is overruled

by the Court sitting en banc or the Supreme Court.”). Second, as Rodriguez

indicates, those opinions misidentify the Booker error by applying Justice Stevens’

opinion retroactively, but failing to apply Justice Breyer’s opinion retroactively. 

Rodriguez, 2005 WL 272952 at *8. Finally, as discussed in Rodriguez, those

opinions do not correctly apply plain error analysis because they do not identify or

apply the burden of persuasion, and they disconnect the prejudice analysis from
For example, the Milan panel does not explain the error it apparently sees in 8

Rodriguez’ identification of the relevant error, or in its retroactive application of not only Justice

Stevens’ Booker holding, but also Justice Breyer’s.

It is true that the Seventh Circuit in Booker indicated that Booker had not 9

preserved the error in the district court, although the Seventh Circuit overlooked the plain error

issue because the Government had not argued it. United States v. Booker, 375 F.3d 508, 515 (7th

Cir. 2004).

18

the true error that remains after both Booker opinions are applied retroactively. Id.

at *11 (“Another way of putting it is that the Hughes reasoning is wrong because it

disconnects the error to be remedied on remand from the decision of whether there

is to be a remand.”).

In United States v. Milan, the Sixth Circuit concluded that Rodriguez is

incorrect, and that Milan’s rights were “substantially affected” by the Booker

error. United States v. Milan, __ F.3d__, 2005 WL 309934 at *6-7(6 Cir. Feb.10, th

2005). Our reading of Milan does not detect any criticism of the substance of the

plain error analysis in Rodriguez. Id. Rather, Milan seems to have rejected 8

Rodriguez only because the Supreme Court remanded Respondent Booker’s case

for resentencing. Id. The Sixth Circuit assumed that the Supreme Court

considered the plain error analysis in Booker. Id. The Sixth Circuit reasoned that

Respondent Booker did not make a Sixth Amendment objection in the district

court, and the fact that the Supreme Court remanded his case for resentencing 9

“amounts – at the very least – to a holding that sentencing Booker in a manner that
The parties’ briefs to the Supreme Court in Booker do not address the standard of 10

error that should be applied, and do not urge the Supreme Court to apply a plain error analysis. 

See Brief for the United States, United States v. Booker, 542 U.S. ___, 125 S. Ct. 738 (2005),

2004 WL 1967056; Brief of Respondent, 2004 WL 1967056. Indeed, contrary to the suggestion

in Milan, 2005 WL 309934 at *7, we do not detect in the government’s petition for certiorari that

the Court was asked to review for plain error. See Pet. for Cert., 2004 WL 1638204. 

See Chandris, Inc. v. Latsis, 515 U.S. 347, 353, 115 S. Ct. 2172, 2182 n.* (1995) 11

(declining to consider a plain error issue raised for the first time in petitioner’s opening brief

because of the Supreme Court rule providing that “[o]nly the questions set forth in the petition

[for certiorari], or fairly included therein, will be considered by the Court.”). 

19

violated the Sixth Amendment affected his substantial rights.” Id. 

With respect, we are not persuaded by Milan for a number of reasons. First,

we believe that the Milan opinion misidentifies the Booker error as “[s]entencing a

defendant on the basis of judicial fact-finding,” id. at *6, which misidentification

results from their having applied retroactively only Justice Stevens’ Booker

holding and their failure to also apply retroactively Justice Breyer’s holding. 

Second, an inference that the Supreme Court implicitly reviewed for plain error,

and remanded Booker’s case because it affected his substantial rights, seems

unwarranted in light of the fact that plain error was not discussed in either of the

two Opinions for the Court or in the various dissents. We believe there are more

plausible explanations for the Supreme Court’s failure to address the plain error

issue: it was not argued, and the plain error issue was not encompassed within 10

the questions accepted for certiorari. Finally, applying both decisions 11

retroactively, it is hard to understand how the Court could have applied plain error
In this case, Duncan invokes the principle of fair warning as to the consequences

12

of his conduct. This is one of the four categories identified in Calder v. Bull, 3 Dall. 386, 390

(1798), as implicating the Ex Post Facto Clause. Although Rogers itself involved another Calder

20

analysis and reached the conclusion that Booker carried his burden of persuasion

on all of the relevant prongs. We are not willing to assume the Supreme Court

implicitly applied plain error analysis in Booker in a manner that would seem to us

to be unorthodox.

 In addition to arguing that this Court should adopt the reasoning employed

by the Fourth, Sixth, and Ninth Circuits, Duncan makes a creative argument based

on ex post facto principles. Although Duncan urges the retroactive application of

the Booker holding announced by Justice Stevens, he argues that applying Justice

Breyer's opinion retroactively violates the Due Process Clause because of the

Supreme Court’s holding in Bouie v. Columbia, 378 U.S. 347, 353, S. Ct. 1697,

1702 (1964). In Bouie, the Court held that judicial enlargement of a criminal

statute, applied retroactively, violated the Due Process Clause because it was

unforeseeable and like an ex post facto law. Id. The Supreme Court later clarified

this doctrine in Rogers v. Tennessee, 532 U.S. 451, 468, 121 S. Ct. 1693, 1703

(2001), explaining that, while the Ex Post Facto Clause does not of its own force

apply to the Judicial Branch, the Due Process Clause encompasses the ex post

facto principle of fair warning.12
category, and although Rogers expressly disavowed any intention to “incorporate jot-for-jot the

specific categories of Calder,” Rogers, 125 S. Ct. at 1699, Duncan does invoke the fair warning

principle articulated in Rogers. We can assume arguendo, without deciding, that Rogers’ fair

warning principle does apply to retroactive increases of punishment as well as to the core Calder

category of retroactive criminalization of conduct.

21

Duncan argues that Justice Breyer’s remedial interpretation, if applied

retroactively, would increase the sentence authorized by the jury’s verdict to a

maximum of life, and therefore would operate, in light of his life sentence, as an

ex post facto law in violation of his due process rights. We look to the principles

announced in Rogers and examine whether the Supreme Court’s Booker opinion

would violate the due process principles of fair warning. Rogers, 532 U.S. at 461,

121 S. Ct. at 1699. 

At the time Duncan committed his offense, 1999 - 2002, the U.S. Code

informed Duncan that if a jury convicted him of possessing at least 5 kilograms of

cocaine powder, he was subject to a sentence of life imprisonment. See 21 U.S.C.

§841(b)(1)(A)(ii)(I). The Guidelines at the time also informed Duncan that a

judge would engage in fact-finding to determine his sentence and could impose up

to a sentence of life imprisonment. 18 U.S.C. § 3551 et seq. Duncan, therefore,

had ample warning at the time he committed his crime that life imprisonment was

a potential consequence of his actions. Applying the principles announced in

Rogers, Duncan’s due process rights cannot be said to have been violated. 
22

Duncan’s argument is similar to the one rejected by the Supreme Court in

Dobbert v. Florida, 432 U.S. 282, 97 S. Ct. 2290 (1977). After Dobbert’s murders,

the Florida death penalty statutes were found unconstitutional under the principles

of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726 (1972). However, Florida

promptly enacted a new death penalty procedure, under which Dobbert was tried,

convicted and sentenced to death. Dobbert argued that there was no death penalty

in effect in Florida at the time of his criminal conduct, because the then extant

Florida statute was declared invalid after the time of his criminal conduct, an

argument based on the Ex Post Facto Clause. The Supreme Court readily rejected

Dobbert’s argument, holding in relevant part:

But this sophistic argument mocks the substance of the

Ex Post Facto Clause. Whether or not the old statute

would in the future, withstand constitutional attack, it

clearly indicated Florida’s view of the severity of murder

and of the degree of punishment which the legislature

wished to impose upon murderers. The statute was

intended to provide maximum deterrence, and its

existence on the statute books provided fair warning as

to the degree of culpability to which the State ascribed to

the act of murder.

Petitioner’s highly technical argument is at odds with [a

statement from Chicot County Drainage District v.

Baxter State Bank , 308 U.S. 371, 60 S. Ct. 317 (1940)]. 

Here the existence of the statute served as an “operative

fact” to warn the petitioner of the penalty which Florida

would seek to impose on him if he were convicted of
Miller v. Florida, 482 U.S. 423, 107 S. Ct. 2446 (1987), is inapposite. It did not 13

involve a case like the instant case and Dobbert, in which the widely recognized potential

sentence remained unchanged from the time of the criminal conduct. Dobbert v. Florida, 432

U.S. 282, 97 S. Ct. 2290 (1977). 

23

first-degree murder. This was sufficient compliance with

the ex post facto provision of the United States

Constitution.

432 U.S at 297-98, 97 S. Ct. at 2300 (citations and quotations omitted). 

As in Dobbert, at the time of Duncan’s criminal conduct, the recognized

state of the law looked to the U.S. Code as establishing maximum sentences – in

Duncan’s case, a life sentence.. Although mandatory Guidelines were in place, 13

the law of this Circuit then recognized the U.S. Code as the source of the

maximum sentence. United States v. Sanchez, 269 F.3d 1250, 1268 (11th Cir.

2001). As another Circuit has noted, “In fact, before Blakely was decided, every

federal court of appeals had held that Apprendi did not apply to guideline

calculations made within the statutory maximum.” Simpson v. United States, 376

F.3d 679, 681 (7 Cir. 2004) (citing United States v. Hughes, 369 F.3d 941, 947 th

(6th Cir. 2004); United States v. Francis, 367 F.3d 805, 820 (8th Cir. 2004);

United States v. Jardine, 364 F.3d 1200, 1209 (10th Cir. 2004); United States v.

Alvarez, 358 F.3d 1194, 1211-12 (9th Cir. 2004); United States v. Phillips, 349

F.3d 138, 143 (3d Cir. 2003): United States v. Patterson, 348 F.3d 218, 228-29
24

(7th Cir. 2003); United States v. Randle, 304 F.3d 373, 378 (5th Cir. 2002);

United States v. Sanchez, 269 F.3d 1250, 1268 (11th Cir. 2001); United States v.

Webb, 255 F.3d 890, 898 (D.C. Cir. 2001); United States v. Angle, 254 F.3d 514,

518 (4th Cir. 2001); United States v. Caba, 241 F.3d 98, 100 (1st Cir.2001);

United States v. Garcia, 240 F.3d 180, 183-84 (2d Cir. 2001)). We readily

conclude that Duncan had sufficient warning to satisfy the due process concerns

articulated in Rogers v. Tennessee.

We have carefully reviewed each argument asserted on appeal, and for the

foregoing reasons, the judgment, sentence, and forfeiture of the district court are

AFFIRMED.