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In the Supreme Court of the United States
CARL M. DRURY, JR., PETITIONER
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
PAUL D. CLEMENT
Counsel of Record
JOHN C. RICHTER
Acting Assistant Attorney
RICHARD A. FRIEDMAN
Department of Justice
Washington, D.C. 20530-0001
1. Whether petitioner is entitled to relief on his claim of sentencing error when he failed to challenge his sentence in his opening brief in the court of appeals.
2. Whether the evidence presented at petitioner's trial was sufficient to establish the interstate-commerce jurisdictional element of the federal murder-for-hire statute, 18 U.S.C. 1958.
In the Supreme Court of the United States
CARL M. DRURY, JR., PETITIONER
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
The opinion of the court of appeals (Pet. 68a-95a) is reported at 396 F.3d 1303. An earlier panel opinion (Pet. 1a-64a) is reported at 344 F.3d 1089. The opinion of the court of appeals vacating the original panel opin ion and granting rehearing en banc (Pet. App. 65a) is reported at 358 F.3d 1280. The opinion of the court of appeals vacating the earlier grant of rehearing en banc and remanding the case to the panel (Pet. 66a-67a) is reported at 396 F.3d 1143.
The judgment of the court of appeals was entered on January 18, 2005. The petition for a writ of certiorari
was filed on April 15, 2005. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
After a jury trial in the United States District Court for the Southern District of Georgia, petitioner was con victed of four counts of violating the federal murder-for- hire statute, 18 U.S.C. 1958, and one count of possessing a firearm in connection with a crime of violence, in viola tion of 18 U.S.C. 924(c). He was sentenced to terms of 120 months of imprisonment on two of the Section 1958 counts (to run concurrently with each other); to terms of 24 months of imprisonment on the other two Section 1958 counts (to run concurrently with each other and consecutively to the terms on the first two Section 1958 counts); and to a consecutive term of 60 months of im prisonment on the Section 924(c) count, for a total sen tence of 204 months of imprisonment. The court of ap peals affirmed. Pet. App. 68a-95a.
1. Agent Steven Whatley of the Bureau of Alcohol, Tobacco, and Firearms (ATF) intermittently resided with petitioner during several months of 2001. During that period, petitioner frequently complained about his wife and ultimately asked Agent Whatley if he would kill her or find someone who would. Agent Whatley re ported that conversation to his supervisor, and an un dercover sting operation was arranged, with ATF Agent Louis Valoze playing the role of the putative assassin. Pet. App. 70a-71a.
During August 2001, petitioner placed four calls to Agent Valoze's cellular telephone to arrange the details of the murder. All four calls were made from pay phones in Brunswick, Georgia; the cellular telephone number had a Georgia area code; and both petitioner and Agent Valoze were at all relevant times physically located in Georgia. On August 20, 2001, after the third cellular telephone call, petitioner met with Agent Valoze outside a restaurant in Darien, Georgia. During that meeting, petitioner gave Agent Valoze a .38 caliber handgun to commit the murder, along with $250 as pay ment for the crime. After the fourth cellular telephone call on August 24, 2001, in which petitioner gave Agent Valoze final instructions about the timing of the murder, ATF agents arrested petitioner. Pet. App. 71a-72a.
2. At the time of the events in question, the federal murder-for-hire statute established criminal penalties for use of "any facility in interstate or foreign com merce, with intent that a murder be committed in viola tion of the laws of any State or the United States as con sideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value." 18 U.S.C. 1958(a) (2000). The statute further provided that " 'facility of interstate commerce' includes means of transportation and communication."1 Peti tioner was charged with four counts of violating Section 1958(a), one for each of the telephone calls he made to Valoze's cellular telephone. Petitioner was also charged with possessing a firearm in connection with a crime of violence, in violation of 18 U.S.C. 924(c).
At trial, the government presented evidence that the communication signal for each of the four telephone calls made by petitioner to Agent Valoze had been routed through a switching center in Jacksonville, Florida, be fore reaching Agent Valoze's cellular telephone in Geor gia. Pet. App. 72a. The district court instructed the jury that "pay telephones and cellular telephones are 'facilities in interstate commerce' under federal law." Id. at 83a. The jury found petitioner guilty on each of the five counts of the indictment.
Consistent with the presentence report, the district court determined that petitioner's Guidelines sentencing range for the Section 1958(a) offenses was 151-188 months of imprisonment. See Gov't C.A. Br. 2. That calculation included a two-level upward adjustment un der Guidelines § 3C1.1 for obstruction of justice, based on petitioner's false testimony at trial. See Pet. App. 99a. The district court further concluded that a down ward departure from the Guidelines range was appropri ate and that petitioner should be sentenced to a total of 144 months of imprisonment on the Section 1958 counts. See id. at 107a-109a. Because petitioner's offenses had not resulted in death or personal injury, the statutory maximum penalty for each Section 1958 count was ten years of imprisonment. 18 U.S.C. 1958(a). The district court sentenced petitioner to concurrent terms of 120 months of imprisonment on Counts One and Two of the indictment, and to 24 months of imprisonment on Counts Three and Four, with the sentences on Counts Three and Four to run concurrently with each other but con secutively to the terms on Counts One and Two. See Pet. App. 109a. The court also sentenced petitioner to a consecutive term of 60 months of imprisonment for the Section 924(c) conviction. See ibid.
3. The court of appeals affirmed. See Pet. App. 68a- 95a.
a. In its initial opinion (see Pet. App. 1a-64a), a panel of the court of appeals held that the version of 18 U.S.C. 1958(a) in effect at the time of petitioner's conduct (see p. 3 & note 1, supra) required proof that the defendant "actually use[d] a facility in a manner that implicates interstate commerce, not just that the facility itself pos sess[ed] the capability of affecting interstate com merce." Pet. App. 26a; see id. at 8a-26a. The court held that the government had "satisfied its evidentiary bur den" by introducing "expert testimony that the tele phone calls to Valoze's cellular phone traveled through a switching center in Jacksonville, Florida before reach ing their final destination." Id. at 27a. The court fur ther held that the jury instruction on the interstate-com merce jurisdictional element was erroneous, but that the instructional error was harmless. See id. at 29a-32a.
b. On February 3, 2004, the court of appeals issued an order vacating the panel opinion and granting re hearing en banc. Pet. App. 65a.
c. In September 2004, while the case was pending before the en banc court of appeals, petitioner filed in the court of appeals a Motion for Remand for Re-Sen tencing in light of this Court's decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). See Pet. App. 99a- 102a. Petitioner contended that his sentence was uncon stitutional under Blakely because the district court had enhanced that sentence based on the court's factual find ing that petitioner had testified falsely at trial. See id. at 99a, 101a-102a. Petitioner also noted that this Court had recently granted petitions for writs of certiorari in United States v. Booker, No. 04-104, and United States v. Fanfan, No. 04-105. See Pet. App. 102a.
d. After the court of appeals granted rehearing en banc, but before the en banc court issued any ruling, Congress amended 18 U.S.C. 1958(a) to replace the phrase "facility in" with "facility of." See Pet. App. 67a; note 1, supra. That amendment "ma[de] clear that § 1958 now establishes federal jurisdiction whenever any 'facility of interstate commerce' is used in the commis sion of a murder-for-hire offense, regardless of whether the use is interstate in nature (i.e. the phone call was between states) or purely intrastate in nature (i.e. the phone call was made to another telephone within the same state)." Pet. App. 67a.
On January 14, 2005, the en banc court of appeals vacated its prior grant of rehearing en banc. Pet. App. 66a-67a. In light of the intervening amendment to 18 U.S.C. 1958(a), the court of appeals concluded that this case no longer presented an issue of sufficient impor tance to warrant en banc review. Pet. App. 67a. The court therefore vacated its order of February 3, 2004, insofar as that order had granted rehearing en banc. Ibid. Rather than reinstate the panel opinion, however, the court of appeals remanded the case to the panel for further consideration. Ibid.
e. On January 18, 2005, on remand from the en banc court, the court of appeals panel again affirmed peti tioner's convictions under 18 U.S.C. 1958. Pet. App. 68a- 95a. The court declined to resolve the question whether, under the version of Section 1958 that was in effect when petitioner made the telephone calls to Agent Valoze (and which is therefore controlling in the instant prosecution), the government was required to prove that the telephone signal crossed state lines. The court found it unnecessary to decide that issue because any such requirement was satisfied in this case, since the government's undisputed expert testimony established that each of the four calls was routed through Jackson ville, Florida. See id. at 80a-82a. The court of appeals also concluded, for essentially the same reason, that it was unnecessary to determine whether the jury instruc tions on the interstate-commerce element were defective because any instructional error was harmless beyond a reasonable doubt. See id. at 83a-85a.
f. Also on January 18, 2005, the court of appeals is sued a separate order denying petitioner's motion to remand for resentencing. Pet. App. 103a-104a. The court explained that petitioner had failed to challenge his sentence in his opening brief, see id. at 103a, and that, under circuit precedent, "issues not raised in the initial brief are deemed abandoned," id. at 104a. The court of appeals' order denying the motion to remand did not cite this Court's decision in United States v. Booker, 125 S. Ct. 738 (2005), which had been issued six days earlier.
1. Petitioner contends (Pet. 5-12) that the Eleventh Circuit's practice of treating as abandoned Booker and Blakely claims that are not raised in a party's initial brief is inconsistent with Griffith v. Kentucky, 479 U.S. 314 (1987), and with this Court's statement in Booker that courts "must apply [its] holding * * * to all cases on direct review." 125 S. Ct. at 769. Petitioner also as serts (Pet. 8-9) that the majority of courts of appeals have considered Booker claims on the merits even when a defendant's challenge to his sentence was not raised in his opening brief. Petitioner's contentions lack merit, and further review is not warranted.
a. i. In Griffith, this Court held that "a new rule for the conduct of criminal prosecutions is to be applied ret roactively to all cases * * * pending on direct review or not yet final." 479 U.S. at 328. Because the petitioner in Griffith had preserved the claim on which he sought review, the Court did not have occasion to consider the interplay between that retroactivity rule and prudential doctrines such as principles of waiver and forfeiture. See id. at 317, 318.
Application of procedural default rules is consonant with the retroactivity rule announced in Griffith. The Court in Griffith concluded that retroactive application of new rules on direct appeal was necessary both be cause of "the nature of judicial review" and in order to "treat similarly situated defendants the same." 479 U.S. at 323. That rationale is in no way inconsistent with application of procedural default rules to bar considera tion of claims that have not been adequately preserved. A defendant who has abandoned a claim of error is not "similarly situated" (id. at 323) to a defendant who has preserved the claim. Cf. Shea v. Louisiana, 470 U.S. 51, 59-60 (1985) (holding that it is not inequitable to draw a distinction between a defendant who raises a claim on collateral attack and one who raises it on direct review because "[t]he one litigant already has taken his case through the primary system" and "[t]he other has not").
Because the question whether a particular claim is properly before an appellate court is distinct from the question of what law applies to the adjudication of the claim, application of procedural bar rules does not of fend principles requiring the retroactive application of new constitutional rules to cases open on direct review:
Retroactivity 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 an swers the question of whether an issue was timely raised and preserved, and if not, whether it should be decided anyway. It makes no more sense to say that a procedural bar should not be applied in this situa tion because doing so undermines or frustrates ret roactive application of a Supreme Court decision, than it does to say that procedural bars should not be applied in any situation because doing so undermines or frustrates the constitutional doctrines and com mands underlying the issue that is held to be de faulted.
United States v. Ardley, 273 F.3d 991, 992 (11th Cir. 2001) (Carnes, J., concurring in denial of rehearing en banc), cert. denied, 535 U.S. 979 (2002).
On several occasions, this Court has indicated that the retroactivity principle embodied in Griffith does not preclude the application of procedural default rules. In Shea, for example, the Court held that the rule an nounced in Edwards v. Arizona, 451 U.S. 477 (1981), would be applied retroactively to cases pending on direct review. 470 U.S. at 59. The Court noted, however, that the retroactive application of Edwards was "subject, of course, to established principles of waiver, harmless error, and the like." Id. at 58 n.4; see Johnson v. United States, 520 U.S. 461, 467 (1997) (explaining that, while the rule announced in United States v. Gaudin, 515 U.S. 506 (1995), applied retroactively under Griffith, unpre served claims were subject to review only for plain er ror); Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 105 n.1 (1993) (Scalia, J., concurring) (noting, as the Court extended the holding of Griffith to civil cases, that "a party may procedurally default on a claim in either [the civil or criminal] context").2 Petitioner cites no case in which this Court has suggested a contrary rule.
ii. Petitioner contends (Pet. 6, 8) that the decision below is inconsistent with this Court's direction in Booker that the holding of that case is to be applied "to all cases on direct review." 125 S. Ct. at 769. That argu ment lacks merit. In Booker, the Court merely indicated that, in keeping with Griffith, the rule applied to all cases on direct review; the Court did not indicate that the rule would have the same effect in every case re gardless of whether a defendant had preserved a Booker claim. Indeed, the Court stated that it "expect[ed] re viewing courts to apply ordinary prudential doctrines" in resolving future Booker claims and to "determin[e], for example, whether the issue was raised below and whether it fails the 'plain error' test." Ibid.
b. Petitioner contends (Pet. 8-9) that most courts of appeals to consider the question have addressed Booker claims on the merits even when no such claim was raised in the defendant's opening brief, and that this Court's review is necessary to resolve the circuit conflict.
i. The Federal Rules of Appellate Procedure provide that an appellant's brief "must contain * * * appel lant's contentions and the reasons for them." Fed. R. App. P. 28(a)(9)(A). The courts of appeals have uni formly interpreted that provision to establish a general prudential rule that "[a]n appellant waives any issue which it does not adequately raise in its initial brief." Playboy Enters., Inc. v. Public Serv. Comm'n, 906 F.2d 25, 40 (1st Cir.), cert. denied, 498 U.S. 959 (1990).3 The courts of appeals have recognized, however, that courts have discretionary authority to address issues not timely raised by the parties. See, e.g., United States v. Miranda, 248 F.3d 434, 443-444 (5th Cir. 2001) (noting that "the issues-not-briefed-are-waived rule is a pruden tial construct that requires the exercise of discretion," and that the court may consider an issue that was not timely raised "where substantial public interests are involved"), cert. denied, 534 U.S. 980 (2001) and 1086 (2002); United States v. Quiroz, 22 F.3d 489, 490-491 (2d Cir. 1994) (court will review an issue not raised in the brief where manifest injustice would otherwise result); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (same); Fed. R. App. P. 2 (granting courts discretion to suspend most rules for "good cause").
Consistent with that general approach, the Eleventh Circuit has recognized that it has the authority to re lieve litigants of the consequences of default and to ad dress an issue on the merits where manifest injustice would otherwise result.4 In the exercise of its discretion, however, the Eleventh Circuit has declined to exempt Booker and Blakely claims from the operation of its longstanding rule that it will not consider claims unless they were timely raised in the appellant's opening brief. See, e.g., United States v. Dockery, 401 F.3d 1261, 1262- 1263 (11th Cir. 2005); United States v. Levy, 379 F.3d 1241, 1243 n.3 (11th Cir. 2004) ("'there would be no mis carriage of justice if we decline to address' Blakely-type issues not raised in opening briefs on appeal") (quoting McGinnis v. Ingram Equip. Co., 918 F.2d 1491, 1496 (11th Cir. 1990)), vacated and remanded, 125 S. Ct. 2542 (2005); see also Ardley, 242 F.3d at 990 (declining to exempt claims under Apprendi v. New Jersey, 530 U.S. 466 (2000), from operation of rule).
Petitioner asserts that "[t]he majority of Circuits to consider the issue have followed this Court's direction and applied Booker's holdings regardless of whether a defendant raised Booker or Blakely issues in his or her brief." Pet. 8; see Pet. 8-9 (citing cases). Most of the decisions on which petitioner relies, however, simply address Booker claims on the merits without citing or discussing the general rule that courts will not entertain issues not raised in a party's opening brief.5 Petitioner cites only one case (Pet. 9), United States v. Washing ton, 398 F.3d 306, 312 n.7 (4th Cir. 2005), in which a court of appeals has explicitly construed Booker to over ride the usual prudential rule that issues not raised in an opening brief will be deemed abandoned. That state ment in Washington was made without briefing or argu ment by the parties on the issue. The government was unable to seek rehearing in that case because the court of appeals, after the time for filing a petition for rehear ing had expired, denied the timely filed joint motion of the parties for an extension of time in which to file a re hearing petition. The Fourth Circuit should be given an opportunity to reconsider its erroneous conclusion in an appropriate case.6
ii. In any event, rules governing the proper treat ment of claims that are not raised in a defendant's open ing brief but are supported by intervening precedent may appropriately be viewed as local rules that can dif fer from circuit to circuit. So long as local rules are rea sonable, see Thomas v. Arn, 474 U.S. 140, 146-148 (1985), and consistent with Acts of Congress and the Federal Rules of Appellate Procedure, see Federal Rule of Appellate Procedure 47(a), there is no requirement of "uniformity among the circuits in their approach to [such] rules." Ortega-Rodriguez v. United States, 507 U.S. 234, 251 n.24 (1993). Indeed, this Court has specifi cally recognized the power of courts of appeals to adopt rules restricting the consideration of issues not raised in a timely manner. In Thomas, the Sixth Circuit had pro mulgated a rule providing that a party who failed to ob ject in the district court to a magistrate's recommenda tion thereby waived the right to appellate review of a district court judgment adopting that recommendation. 474 U.S. at 144. This Court held that the Sixth Circuit had not abused its discretion by adopting that rule. See id. at 145-155.
The Sixth Circuit's "nonjurisdictional waiver provi sion," like the rule at issue here, would ordinarily "pre clud[e] appellate review of any issue" not raised in the manner prescribed, although the court of appeals could "excuse the default in the interests of justice." 474 U.S. at 147-148, 155. Noting that such a rule was supported by sound considerations of judicial economy, id. at 148, this Court concluded that the courts of appeals may adopt "procedures deemed desirable from the viewpoint of sound judicial practice although in nowise commanded by statute or by the Constitution." Id. at 146-147 (quot ing Cupp v. Naughten, 414 U.S. 141, 146 (1973)). Simi larly, procedural bar rules of the sort at issue here pro mote efficiency by avoiding piecemeal briefing of ap peals and ensuring that the appellee has the opportunity to respond to all issues raised by the appellant without supplemental briefing. Such rules are especially impor tant because of the courts of appeals' increasingly heavy caseloads.
c. This Court has denied review in a number of cases in which the Eleventh Circuit declined to entertain a claim under the intervening decisions in Blakely or Apprendi solely because it was not raised in the peti tioner's opening brief, see, e.g., Ardley v. United States, 535 U.S. 979 (2002) (No. 01-8714); Nealy v. United States, 534 U.S. 1023 (2001) (No. 01-5152); Padilla- Reyes v. United States, 534 U.S. 913 (2001) (No. 01-5284), including cases in which the petitioner speci fically challenged application of the procedural bar rule in that context. See, e.g., Phillips v. United States, 536 U.S. 961 (2002) (No. 01-5718) (denying review when peti tioner challenged application of rule to bar consideration of Apprendi claim); Garcia v. United States, 534 U.S. 823 (2001) (No. 00-1866) (denying review when Eleventh Circuit declined, on remand from this Court for recon sideration in light of Apprendi, to consider claim be cause it was not raised in initial brief); see also Thomp son v. United States, 535 U.S. 1114 (2002) (No. 01-8603) (challenging application of rule to bar consideration of ex post facto claim). There is no reason for a different result in this case.
In other cases raising the same issue, this Court has granted petitions for writs of certiorari, vacated the judgments of the court of appeals, and remanded for further consideration in light of Booker. See Hembree v. United States, No. 04-1210, 2005 WL 575559 (June 13, 2005); Dixon v. United States, No. 04-8932, 2005 WL 540062 (June 6, 2005); Levy v. United States, No. 04- 8942, 2005 WL 540692 (June 6, 2005). For two reasons, that approach is unwarranted here.
First, the Eleventh Circuit confirmed in Dockery that a remand for further consideration in light of Booker does not alter the court of appeals' application of its longstanding rule that issues not raised in an appel lant's opening brief are deemed abandoned. See 401 F.3d at 1262; accord, e.g., United States v. Mosley, No. 04-11189, 2005 WL 1317026, at *1 (11th Cir. June 2, 2005) (reinstating original judgment after this Court granted certiorari, vacated judgment, and remanded for further consideration in light of Booker); United States v. Senn, 128 Fed. Appx. 96 (11th Cir. 2005) (per curiam) (same).7 Second, the court of appeals in the instant case denied petitioner's motion to remand for resentencing six days after this Court issued its decision in Booker. Pet. App. 103a-104a. It is true that the Eleventh Circuit did not cite Booker in its order denying the remand mo tion. But petitioner acknowledges that the court of ap peals "was undoubtedly aware [of Booker] at the time of the issuance of the order." Pet. 8.
2. Petitioner argues (Pet. 13-27) that this Court should grant review to determine whether the version of 18 U.S.C. 1958(a) that was in effect at the time of his own offenses (i.e., in August 2001, see pp. 2-3, supra) re quired proof that a communication furthering the of fense traveled in interstate commerce. Petitioner cor rectly identifies (Pet. 14-15) a circuit conflict on that question. See Pet. App. 78a (discussing circuit conflict); compare United States v. Weathers, 169 F.3d 336, 339- 343 (6th Cir.) (holding that prior version of Section 1958(a) required proof of a communication in interstate commerce), cert. denied, 528 U.S. 838 (1999), with United States v. Richeson, 338 F.3d 653, 660-661 (7th Cir.) (holding that former Section 1958(a) required proof that a facility of interstate commerce, such as a tele phone, was used in the offense, not that a particular communication passed in interstate commerce), cert. denied, 540 U.S. 934 (2003); United States v. Marek, 238 F.3d 310, 315-323 (5th Cir.) (same), cert. denied, 534 U.S. 813 (2001). For two reasons, the question pre sented does not warrant this Court's review.
First, because the 2004 statutory amendment (see note 1, supra) has eliminated any ambiguity in Section 1958(a) with respect to offenses committed after the amendment's effective date, the question presented is one of slight and diminishing practical importance. Peti tioner notes (Pet. 27) that the former version of Section 1958(a) will apply to pending and future trials and ap peals involving alleged pre-amendment violations. This Court's resolution of the question presented, however, would affect the outcome only of cases involving purely intrastate use of facilities of interstate commerce. Peti tioner offers no reason to believe that any significant number of such cases involving pre-amendment conduct remain pending in the federal system.
Second, this case would in any event be an inappro priate vehicle for resolution of the question presented, even if that issue otherwise warranted this Court's re view. After this case was remanded to the panel by the en banc court of appeals, the Eleventh Circuit held that it need not decide which interpretation of former Section 1958(a) was correct because petitioner's convictions would be affirmed under either construction. See Pet. App. 80a-85a; p. 6, supra. The court based that conclu sion on undisputed "expert testimony that each of the four calls [petitioner] placed to Agent Valoze's cellular phone was routed from Georgia through [a] Jacksonville, Florida switching center, and then back into Georgia." Pet. App. 80a-81a.8 Because the outcome of this case would have been the same if the court of appeals had adopted petitioner's proposed construction of former Section 1958(a), the interpretive question presented in the certiorari petition does not warrant this Court's re view.
The petition for a writ of certiorari should be denied.
PAUL D. CLEMENT
JOHN C. RICHTER
Acting Assistant Attorney
RICHARD A. FRIEDMAN
1 In 2004, Congress amended 18 U.S.C. 1958(a) to change the phrase "facility in" to "facility of," so that the statute now forbids the use of "any facility of interstate or foreign commerce" for the proscribed pur pose. See Pub. L. 108-458, Tit. VI, § 6704, 118 Stat. 3638.
2 Accord, e.g., United States v. Humphrey, 287 F.3d 422, 442 (6th Cir. 2002) (noting that, although Apprendi v. New Jersey, 530 U.S. 466 (2000), applies retroactively to cases on direct review, unpreserved claims were subject to plain-error review); United States v. Outen, 286 F.3d 622, 634 (2d Cir. 2002) (same); United States v. Wheat, 278 F.3d 722, 739 (8th Cir. 2001) (same), cert. denied, 537 U.S. 850 (2002); United States v. Keys, 133 F.3d 1282, 1285-1286 (9th Cir.) (en banc) (holding that, although rule of Gaudin applied retroactively to cases on direct review, unpreserved claims were subject to review only for plain error), cert. denied, 525 U.S. 891 (1998).
3 Accord, e.g., United States v. Quiroz, 22 F.3d 489, 490-491 (2d Cir. 1994) ("It is well established that an argument not raised on appeal is deemed abandoned, and we will not ordinarily consider such an argu ment unless manifest injustice otherwise would result.") (internal cita tions and quotation marks omitted); Ghana v. Holland, 226 F.3d 175, 180 (3d Cir. 2000) ("It is well settled that if an appellant fails to comply with these [Rule 28] requirements on a particular issue, he normally has abandoned and waived that issue on appeal.") (quoting Kost v. Koza kiewicz, 1 F.3d 176, 182 (3d Cir. 1993)) (alterations omitted); Shopco Distrib. Co. v. Commanding Gen. of Marine Corps Base, 885 F.2d 167, 170 n.3 (4th Cir. 1989) (holding that any claim not raised in a party's initial brief will be deemed waived) (collecting authorities); United States v. Miranda, 248 F.3d 434, 443 (5th Cir. 2001) ("Failure to satisfy the requirements of Rule 28 as to a particular issue ordinarily consti tutes abandonment of the issue."), cert. denied, 534 U.S. 980 (2001) and 1086 (2002); Bickel v. Korean Air Lines Co., 96 F.3d 151, 153 (6th Cir. 1996) ("We normally decline to consider issues not raised in the appellant's opening brief.") (quoting Priddy v. Edelman, 883 F.2d 438, 446 (6th Cir. 1989)), cert. denied, 519 U.S. 1093 (1997); Holman v. Indiana, 211 F.3d 399, 406 (7th Cir.) (finding arguments not raised in initial brief waived), cert. denied, 531 U.S. 880 (2000); Sweat v. City of Fort Smith, 265 F.3d 692, 696 (8th Cir. 2001) ("[C]laims not raised in an initial appeal brief are waived."); Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) ("We review only issues which are argued specifically and distinctly in a party's opening brief."); Adams-Arapahoe Joint Sch. Dist. No. 28-J v. Continental Ins. Co., 891 F.2d 772, 776 (10th Cir. 1989) (holding that "[a]n issue not included in either the docketing statement or the statement of issues in the party's initial brief is waived on appeal"); Maryland People's Counsel v. FERC, 760 F.2d 318, 319-320 (D.C. Cir. 1985) (deeming an issue waived where a party did not raise it until supplemental briefing); Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 800 (Fed. Cir. 1990) ("[A]n issue not raised by an appellant in its opening brief * * * is waived.").
4 See, e.g., United States v. Rivera Pedin, 861 F.2d 1522, 1526 n.9 (11th Cir. 1988) (considering, pursuant to Federal Rule of Appellate Procedure 2, an issue raised only in co-defendant's brief, despite defen dant's failure to adopt by reference his co-defendant's arguments); Gramegna v. Johnson, 846 F.2d 675 (11th Cir. 1988) (vacating judg ment based on issue raised sua sponte by the court, pursuant to Rule 2); United States v. Levy, 391 F.3d 1327, 1335 (11th Cir. 2004) (Hull, J., concurring in denial of rehearing en banc) ("The issue is not whether this Court has the power to consider issues not raised in the initial brief; of course it does."), vacated and remanded, 125 S. Ct. 2542 (2005).
5 See United States v. Paladino, 401 F.3d 471, 481 (7th Cir. 2005); United States v. Ameline, 400 F.3d 646, 651-652 (9th Cir. 2005); United States v. Oliver, 397 F.3d 369, 377 n.1 (6th Cir. 2005); United States v. Crosby, 397 F.3d 103, 119 (2d Cir. 2005).
6 Some courts of appeals currently are refining their analysis of when it is appropriate to consider tardily raised claims based on inter vening precedent. The Fifth Circuit, which previously had entertained such claims, see, e.g., United States v. Miranda, 248 F.3d 434, 443-444 (2001), cert. denied, 534 U.S. 980 (2001) and 1086 (2002), recently has followed Eleventh Circuit precedent to conclude that "absent extra ordinary circumstances, we will not consider Booker issues raised for the first time in a petition for rehearing." United States v. Taylor, No. 03-10167, 2005 WL 1155245 (5th Cir. May 17, 2005) (per curiam) (citing, inter alia, Ardley); see United States v. Hernandez-Gonzalez, 405 F.3d 260, 261-262 (5th Cir. 2005) (per curiam) (citing, inter alia, Levy and Ardley); United States v. Lewis, No. 04-10102, 2005 WL 1394949 (5th Cir. June 14, 2005) (per curiam) (following Taylor). The First Circuit, on the other hand, recently concluded that the "substantial change in the applicable law wrought by the Supreme Court's decisions in Blakely and Booker * * * constitutes an 'exceptional circumstance'" in which the court would decline to apply its general rule that tardily raised issues "are generally considered waived." United States v. Vazquez-Rivera, 407 F.3d 476, 487 (1st Cir. 2005).
7 The Fifth Circuit has taken the same approach. See Taylor, 2005 WL 1155245, at *1 (on remand from this Court for reconsideration in light of Booker, Fifth Circuit reinstated original judgment because defendant had raised Booker argument for the first time in petition for a writ of certiorari and "extraordinary circumstances" did not warrant relief); Lewis, 2005 WL 1394949, at *1 (same).
8 Petitioner's claim of a circuit conflict on the construction of former
18 U.S.C. 1958(a) rests on the Sixth Circuit's decision in Weathers. See
Pet. 14-15. After concluding that former Section 1958(a) required proof
of a communication in interstate commerce, however, the court in Weathers
found the statute's jurisdictional element to be satisfied by proof that
a telecommunications company had facilitated a telephone call between persons
within the same State "by sending a search signal to communications
equipment in another state to locate Weathers's cellular telephone."
169 F.3d at 342. There is consequently no reason to believe that petitioner's
appeal of his convictions would have been resolved differently if this case
had arisen in the Sixth Circuit.